Lapas attēli
PDF
ePub

The container 12 is divided into two sections by diaphragm 16 which is porous, wet, and electrolytically conductive. The diaphragm typically is made of asbestos and contains a dissolved electrolyte, e.g., potassium carbonate. Electrodes 14 and 15 are porous and catalytically active. Electrode 15 may be made of carbon. Electrode 14, typically porous sintered nickel activated with platinum black, contains a radioactive material, e.g., cerium.144 Hydrocarbon fuel, e.g., propane gas, flows into the chamber on the left through inlet port 21 and out through port 22. The oxidizer gas, usually oxygen, flows into the chamber on the right through port 23 and out through port 24. The specification points out that hydrocarbons are relatively unreactive at low temperatures and that, consequently, activating catalysts have been employed in the electrodes of fuel cells. The use of such catalysts, however, limits obtainable current density. Appellant's invention, it is alleged, permits activation of the hydrocarbons by the radiation from the electrode, adjacent to which easily consumed "active fragments" of the hydrocarbons are generated. Claims 1 and 3 are illustrative:

1. A hydrocarbon fuel cell comprising a container separated into first and second compartments by eletrode means, said first and second compartments each having inlet and outlet ports for the circulation of a hydrocarbon and oxidizer, respectively, and said electrode means comprising first and second electrodes associated with said first and second compartments, respectively, said electrodes being separated by an ionic membrane, said first electrode being porous and catalytically active, and containing cerium" isotope, said second electrode being porous and catalytically active, and said ionic membrane being porous, wet, and electrolytically conductive.

3. A hydrocarbon fuel cell, comprising a container separated into first and second compartments by electrode means, said first and second compartments each having inlet and outlet ports for the circulation of a hydrocarbon and an oxidizer, respectively, and said electrode means comprising first and second electrodes separated by an ionic membrane, and first electrode being associated with said first compartment and containing a radioactive isotope.

The following references were relied on: 2

Gunn

Foster Wheeler (British) --

2, 384, 463 Sept. 11, 1945 801, 563 Sept. 17, 1958

Gunn describes a fuel cell in which catalytic materials are incorporated into the electrodes so that, at low temperatures, sufficient ionization will take place at the electrodes to permit oxidation of the fuel. Suitable fuels include hydrogen, methane and propane. Appellant's discussion of Gunn in his brief before the board provides a helpful summary of the reference:

The Gunn patent is used as a basic reference to show as old the concept of a fuel cell employing a hydrocarbon dehydrogenation catalyst in an electrode

2 The examiner also relied on several other references. The board, however, deemed them cumulative and we will not consider them.

thereof. Appellant does not contest this showing, * nor that it teaches the use of foraminous and sintered electrodes and other now-common features of fuel cells generally.

It is perhaps noteworthy that Gunn's catalysts are not described as dehydrogenative nor is their function limited to the facilitation of dehydrogenation reactions.

Foster Wheeler discloses a process for the dehydrogenation of hydrocarbons by subjecting them to nuclear radiation. The specification states:

When radiation such as alpha, beta, gamma, neutrons and X-rays passes through matter, the heavier particles tend to produce nuclear changes and chemical reactions. It is known that lighter particles and photons such as gamma rays and X-rays produce ionisation and activate free radicals when limited to certain energy ranges.

It goes on to say that the heavy particles should therefore be ruled out in order to maximize activation and minimize formation of radioactive product. An example is given in which olefins are manufactured by the disclosed process.

The board felt that these two references made appellant's invention obvious:

It is established that dehydrogenation of hydrocarbons is a desirable result in the operation of a hydrocarbon fuel cell. Accordingly it would be obvious to one of ordinary skill in this art to include the radioactive material of *** [Foster Wheeler] shown as dehydrogenating hydrocarbons in the electrode of the hydrocarbon fuel cell of Gun et al. There is no evidence as to what appellant says is the necessity for the production of hydrocarbon fragments at the electrode or that *** [Foster Wheeler] differs in this respect.

Appellant argues that the references cited should not have been combined and that, in any event, they do not meet the structural limitations of the claims.

The allegation of impropriety in combining the references, we think, cannot stand in the face of appellant's statement before the board that "the concept of a fuel cell employing a hydrocarbon dehydrogenation catalyst in an electrode" is an old one. The examiner went no further than the hydrocarbon dehydrogenation art. Furthermore, we do not think appellant can argue that the fragmentation or ionization effected by his radioactive material is unexpected in view of the similar results effected by the dehydrogenation catalysts used in the fuel cells of the prior art and by the radioactive materials used in other dehydrogenation processes. In Gunn, dehydrogenation catalysts are specified for low temperature fuel cells because "catalytic action must take place at the electrode surfaces for pro

3 He also stated:

Classically, the function of the catalysts in such cells has been that of dehydrogenation of the fuel gas, to provide hydrogen atoms for oxidation by the oxidizer, and to accelerate this oxidation.

moting gaseous ionization thereat." (Italics added.) In Foster Wheeler, nuclear radiation is described as productive of nuclear change, chemical reaction, free radical activation and ionization.

[1] We agree with the solicitor that the mere recitation of an element in the claims is not necessarily determinative of its criticality. See In re Eisenhut, 44 CCPA 974, 245 F. 2d 481, 114 USPQ 287 (1957). Accordingly, we find no merit in appellant's contention that each of the structural limitation of his claims is critical and must be "met" by the references.

The decision of the board is affirmed.

PATENTS

393 F2d 1001; 157 USPQ 519

IN RE HARRY DUDLEY WRIGHT (No. 7853)

1. DISCLAIMER IN GENERAL DOUBLE PATENTING-IN GENERAL

Terminal disclaimer obviates rejection if patent and application claims differ in substances to subject matter claimed; combination claims cannot be said to be directed to same invention where they do not contain the same elements.

2. DISCLAIMER-IN GENERAL DOUBLE PATENTING-IN GENERAL

Examiner is properly concerned with obviousness of differences between subject matter claimed in applicant's divisional application and patent before filing of terminal disclaimer, but, with filing and acceptance of disclaimer, that becomes unimportant.

3. DISCLAIMER-IN GENERAL DOURLE PATENTING-IN GENERAL

While claims read on identical device described in both patent and divisional application and necessarily relate thereto, what is defined in application claims is not the same as what is defined in patent claim; hence, claims do not define identical inventions; since they do not, terminal disclaimer obviates double patenting rejection.

United States Court of Customs and Patent Appeals, May 16, 1968 APPEAL from Patent Office, Serial No. 265,315

[Affirmed.]

Moore & Hall, Elliott I. Pollock, Reed C. Lawlor for appellant.

Joseph Schimmel (Jere W. Sears, of counsel) for the Commissioner of Patents.

[Oral argument December 4, 1967 by Mr. Pollack and Mr. Sears] Before WORLEY, Chief Judge, and Judges RICH, SMITH, ALMOND, KIRKPATRICK.*

Appellant's brief states:

neither Gunn et al nor the appellant's structure depend primarily on dehydrogenation but rather on the formation of products that can be electrochemically consumed.

*Senior District Judge, Eastern District of Pennsylvania, sitting by designation.

RICH, Judge, delivered the opinion of the court:

This appeal is from the decision of the Patent Office Board of Appeals affirming the rejection by the examiner of claims 1-8, all claims of application serial No. 265,315, filed March 12, 1963, entitled "Sectional Digital Selector Switch Construction."

This application is an optional "division”1 of appellant's application serial No. 820,543 which issued as Patent No. 3,089,923 on May 14, 1963, 2 months after filing of the application at bar. A terminal disclaimer 2 was filed after final rejection disclaiming the portion of the term of any patent issued on the application on appeal beyond the expiration date of said issued patent.

Patent 3,089,923 and the appealed application contain identical disclosures. 3

The sole ground of rejection is "double patenting," all eleven claims of the patent being relied on.

The board stated that the only issue is double patenting and the effect of the terminal disclaimer. As we read its opinion, it held the double patenting rejection to be supportable, notwithstanding the terminal disclaimer and our decisions in In re Robeson, 51 CCPA 1271, 331 F. 2d 610, 141 USPQ 485, and In re Kaye, 51 CCPA 1465, 332 F 2d 816, 141 USPQ 829, both cited and presumably considered by it, under 35 USC 101 on the ground that the same invention is being claimed in the application at bar and in the issued patent. It said that the claims "are substantially the same," that the "claimed subject matter is identical in each instance and the difference in the claims is one of changed verbiage or of the breadth of definition of corresponding elements," and that "any difference between the claimed subjects matter *** is not apparent." It referred to the "idertical disclosures" and "the equal portions of those disclosures that are the subject matter of the patent and application claims."

1 The record does not show the whole prosecution history but the examiner stated, without refutation, that appellant initiated the filing of the divisional application which was not in response to a requirement for restriction or election of species, so that 35 USC 121 has no applicability.

2 The usual simple form of disclaimer to "all of the term after May 14, 1980 of any patent that may be hereafter granted on the basis of said application, so that any such patent granted hereafter will expire at the same time as U. S. Letters Patent No. 3,089,923 which issued on May 14, 1963.” Cf. In re Griswold, 53 CCPA 1565, 365 F. 2d 834, 150 USPQ 804, footnote 5, for another form of disclaimer.

That is to say, the drawings and specifications are identical, not including any claims as part of the disclosure and excluding the cross reference in the "divisional" application which says: "This is a divisional application of my co-pending patent application Serial No. 820,543. Now Patent No. 3,089,923." There appears to be no cross reference in the issued but copending patent to the "divisional" application. See Rule 79. The examiner "relied upon" only the Wright patent but he also cited as "Corroborative references" three other patents which he referred to in the course of the argument in his Answer. The board said it was not clear to it "of what they are alleged to be corroborative." While making certain presumptions as to why the examiner referred to these patents, the board did not rely on any of them to support its affirmance. We thereforce find it unnecessary to consider them.

Appellant submits that exactly the opposite is true, that it is entirely possible to have two or more inventions described in a single disclosure, that two distinct inventions were described, and that the claims of the application are directed to subject matter which is distinct from that claimed in the patent. Clearly, therefore, our only task is to construe the claims and determine who is right. Preliminary to further discussion, it is necessary to explain what the nature of the subject matter is.

Figs. 1 and 6 of the patent drawings, which are the same as the application drawings, are here reproduced:

[graphic][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][merged small][subsumed][ocr errors][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][merged small][subsumed][subsumed][subsumed][merged small]

The invention is, or inventions are, embodied in a manually-operated digital switch the construction of which is such that any desired number of similar units can be fastened together to display any desired number of digits and control as many circuits. In Fig. 1 a switch assembly of three units 10 is shown. Part of one unit is shown in side elevation in Fig. 6. It has a casing 14, 15, 16, 22 (“22” added as it does not appear in Fig. 6 but in other figures), like a shallow box, in which a thumbwheel or switching wheel 30 is rota

« iepriekšējāTurpināt »