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It was known prior to the conception of the invention by either party that glass fibers conduct light from one end to the other. It was also known that a bundle of such fibers having matching spatial arrangements of the fibers at the pick-up and viewing ends would transmit an image even though the bundle was bent, but this construction had not been used successfully because the image transmitted was always blurred. One factor contributing to such blurring was an effect, known as “cross-talk”, whereby light leaked from fiber to fiber so as to impair contrast between different parts of the image. The problem of cross-talk had been reduced to some extent by coating the individual fibers with a plastic or resinous material having a lower index of refraction than the glass of the fiber.

J. W. Hicks, a physicist at AO, was in charge of a fiber optics program there and assigned to work on a contract in that field which AO had with the government. He was devoting a major portion of his time to the preparation of bundles of glass fibers coated with plastic having a lower index of refraction as early as the summer of 1956 when he first met Norton.

The record establishes that Norton made one of his visit to the AO laboratory on October 9 and 10 of 1956. A notebook kept by Norton indicates that he saw a set-up whereby Hicks was drawing glass fibers (uncoated) from a furnace and states:

Suggest making bundle of large (.030'') coated fibers. Then pull down to .001" as tubes are made. It is on this entry, which is uncorroborated, and following events, that Norton bases a claim to October 9, 1956 for conception.

Norton testified that he discussed his idea shortly after this entry with Brian O'Brien, Director of Research at AO, Stephen McNeille, Assistant Director, Hicks and possibly one Walter Siegmund.

O'Brien testified that he remembered the circumstances when a suggestion by Norton relating to “drawing of multiple coated fibers” was made. While he initially could only place the suggestion in the fall of 1956, he ultimately, in response to what the board correctly regarded as leading questions, stated the date was October 10, 1956. O'Brien did not list Hicks as present when Norton's suggestion was made but stated that he described the disclosure to Hicks and urged that he consider how to do something about it. O'Brien also stated that he later asked Lee Upton, chief glass technologist for AO, how they were going to get the rods that Norton wanted to use.

McNeille emphasized that Norton's suggestion dealt with drawing "multiple clad fibers" so as to require fewer subsequent assembly processes to attain a bundle of fibers and that the suggestion involved clad or unclad fibers. He referred to the suggestion as involving either drawing the fibers from a multiplicity of rods and thereafter dipping them in “plastic coating material” or drawing the fibers from rods already coated. He did not recall any specific suggestion as to the type of cladding materials to be employed.

Hicks testified that Norton made two “fairly similar” suggestions regarding drawing multiple fibers simultaneously. One was “to draw an array of fibers separately, that is without fusing them together," by some means "still unknown” to Hicks to retain their alignment. The other suggestion was "to fuse these fibers together and draw them in a fused array.” He placed the time of the suggestion at between September of 1956 and February of 1957.

It is established from the testimony of Hicks, Upton and Bazinet, the latter a technician working under Hicks, that an attempt was made at AO in the late fall of 1956 or the winter of 1956–57 to clad glass on glass fibers. Hicks testified that they were trying to follow a suggestion of Upton 17 which consisted of taking a round polished rod and a tube with moderately good fit between the rod and tube, heat these up in a furnace, draw vacuum and sort of zone fuse the tube on the rod. Hicks further stated :

I believe at that time Norton's suggestion was to dip a glass rod in a melt and pull up the cladding, pull it up out of the melt and leave the cladding on the rod, which seemed unpractical and still seems fairly impractical.

After overcoming difficulties in obtaining round rods, Hicks constructed a special three-zone furnace, and Hicks, Upton and Bazinet did attempt to produce glass-clad glass fibers according to Upton's suggestion in January of 1957. The experiment seemed to be going well with the glass of the tube collapsing on the rod when the experimenters went out to lunch. Upon returning, however, they found that the furnace apparently had overheated and the glass assembly curled around the liner of the furnace and stuck to it. The product was a coarse, coated fiber about a tenth of an inch in diameter roughly in the shape of a helix. Irritated at having spoiled the work, Hicks took down the machinery and threw it into the corner of the room. Three or four weeks later, Hicks chipped out some of the coated glass, a few inches in length, and he and Bazinet redrew it in another furnace into a fiber and made a comparison test with plastic coated fibers. Hicks had "no recollection" of the measurements of it.

Bazinet described the experiment following the procedure suggested by Upton as "unproductive”. He also testified regarding tests made between February 13 and March 26, 1957, on what was apparently the fiber produced from the output of the “unproductive" experiment. The tested fiber was described as “a bad fiber, which probably had a bad interface” (the region between the core glass and the cladding) and as having "an excessive loss of light.” In a contemporary memo of Hicks dated April 4, 1957, Hicks stated that the cladding job on the fiber was "poor" and that the fiber was "too brittle". Bazinet called it “pretty bad” compared to plastic coated fibers tested.

17 Upton derived this suggestion from a process he had previously patented for coating glass on glass in making an hermetically sealed electrical resistance unit. (Patent No. 2,623,145, issued December 23, 1952).

The record also shows that Norton became "a little impatient that *** [his] idea was not being carried out more rapidly” and performed an experiment of his own in this spring of 1957. He first bundled 16 uncoated rods together in "a four-by-four array", the rods not being welded together, and drew them down individually into a series of 16 fibers. The resulting fibers were not in any way attached to each other and “were useless for the purpose.” In a second experiment he welded the rods together very lightly and then drew them down in a series of operations to produce a group of fibers related similarly to the original rods. Norton reported these experiments to MacNeille in a letter dated April 5, 1957. Shortly thereafter Norton took specimens from the experiments to AO where he displayed them to MacNeille, Hicks and O'Brien and conferred with patent counsel apparently on April 10, 1957. A first draft of the Norton patent application was transmitted to Norton by patent counsel on April 23, 1957. That draft is directed almost exclusively to a process in which a group of glass-coated rods are fused together and drawn together in that state. Its disclosure is consistent with the Norton notebook memo of October 9, 1956, and discloses that the coatings of the multifiber unit are fused to each other. Certain revisions and an additional conference between patent counsel and Norton took place before the application was filed on July 3, 1957.

The board concluded that this evidence did not prove that Norton had conceived the invention of the counts prior to April 1957. The board was also not satisfied that Norton had been diligent in reducing to practice beginning prior to April 10, 1957, or that he had actually reduced the invention to practice prior to his filing date, July 3, 1957.

We find no reversible error in those conclusions.

Norton's cryptic notebook entry of October 9, 1956 obviously lacks many features of the counts. Thus, it does not specify the material of the coating, that the coating is of substantially uniform thickness, that the coating is fused to the entire outer surface, or that it has an index of refraction which is lower than the glass core and is adapted to prevent light from escaping from the core into the coating. Neither is it specified that the coated fibers are flexible. It is true that providing glass fibers with plastic coatings is an effort to reduce leakage between fibers in an array was known. It is also true that O'Brien in describing Norton's oral description of his concept supplied the additional factor that the coating was to be of glass having a lower index of refraction than the core. However, O'Brien's testimony, as well as the notebook entry and the testimony of the others involved, demonstrate clearly that Norton's concept concerned drawing multiple fibers from an array of rods so as to preserve the relationship of the individual elements and facilitate the assembly of a fiber optic device with its many thousands of individual fibers properly oriented. In fact, when Norton undertook to prove out his invention in his own laboratory around April of 1957, he used uncoated rods and paid no attention to the various characteristics of the invention in issue recited in the counts and missing from his written disclosure.

After Norton's disclosure in October 1956, Hicks continued in the optical fiber work on which he was already embarked. He made no attempt to follow Norton's multiple-fiber drawing technique. While he did proceed to an experiment with glass coating, he considered the work to be Upton's “baby” and had Upton participate in the experiment for that reason. The distorted piece of clad glass that resulted when that experiment went wrong obviously lacked most of the features of the count, including the size. The fiber later drawn from a part of that piece by Hicks and Bazinet, which is really the only fiber relied on for a reduction to practice, obviously was not a satisfactory fiber. It plainly is inadequate to show either conception or reduction to practice at the time, which the record fixes as between February 13 and March 26, 1957.

Norton's own experiment carried out around April 5, 1957 involved unclad fibers and likewise would be inadequate, even if corroborated, to show either conception or reduction to practice.

Since the next event was the conference of Norton with others including AO patent counsel, on April 10, 1957, it is apparent that conception has not been proved prior to that date. Also, since no other acts after the Hicks-Bazinet tests are advanced by Norton as showing actual reduction to practice before Norton's July 3, 1957 filing date, the board correctly restricted Norton to that date for reduction to practice. 18

The board's decision is affirmed.
RICH, J., concurs in the result.

18 Since we have considered Norton's priority evidence, in the same manner as did the board, without regard to any limitations which might have been imposed thereon as a result of his motion to amend his preliminary statement being denied, and have still concluded that the award of priority was correct, any issue regarding that denial is moot.

MEMORANDUM OF DECISIONS

DISMISSED

OCTOBER 7, 1969

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No. 8585. In re Frank Passal and Arthur J. Tomson-Bright nickel processes and compositions.

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No. 8588. In re John O. Renskers, Charles S. Liebman, Robert J. Salzman and

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No. 8601. In re Carl Albert Aufdermarsh, Jr.—Product and process.

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