*1 5, 6 and position, of claims

8 is reversed. affirmed of the board

The decision as to 4 but reversed 3 and

as to claims 10. and 5 claims

Modified. CCPA Application of Francis J. HASSLER. Appeal No. 7318.

Patent Washington, Raymond Lippitt, F. D. Court United States of Customs West, Jr., Memphis, C., (William K. Appeals. Patent counsel), Tenn., appellant. for July 1965. Washington, C., Moore, D. Clarence W. Washington, C., (Raymond Martin, D. E. counsel), the Commissioner Patents. Judge, RICH, Acting

Before Chief MARTIN, SMITH, ALMOND, Judges.

MARTIN, Judge.

The issues we must determine newspaper appeal are whether a article reporting progress experiments appellant and his is available coworkers reference, so, it, as a and if whether coupled knowledge art either generally cer- as known or as shown patents, make the tain is sufficient to presently claimed obvious to in the art. one skill newspaper “Bulk article titled Leaf Curing Ready Farm Method Test- ing,” appeared in News and Ob- “The Carolina, server,” Raleigh, on No- North reports 10, 1958. The vember article the results method of bulk regarded promising “so private manufacturers have now been en- couraged development of to consider the equipment to aid commercial testing.” method is farm-scale by agri- developed to have been stated *2 engineers Ag- clearly 103,” cultural upon the “N. C. claims is based USC Experiment ricultural USDA,” Station the but “since Observer article applicant’s prior and was “tested the Oxford not first is to invention, Research this summer” under proper Station a date is not it “cooperative curing program” determining a reference to be in utilized by appellant, headed Dr. Francis J. obviousness under 103.” Hassler. points The solicitor’s brief out that showing there no is evidence of record 13, later, Nineteen on months June that the claimed invention had been 1960, appellant Francis J. Hassler filed completed prior publication the to of The application 35,499 serial No. for News and Observer thus the Apparatus Curing “Method Bulk for Palmquist on reliance was not well found- subsequent requirement Tobacco.” A points ed. The solicitor also out the that by for division the Patent Office led to argument inconsistent, two lines of application, 164,- the instant serial No. appellant arguing the on the one hand 789, January 8, 1962, filed the same titled that not invention had been com- parent, as the but claims of which pleted prior to the article which there- apparatus to restricted alone. barring anticipatory fore closure, and, be cannot dis- greater below, As will be seen detail hand, on the other that the newspaper article disclosure corre- completed prior invention had been to the sponds great part publication, Palmquist and in view of now claimed. article was not an for available reference Appellant, brief, reply in his main and rejection. Appellant’s reply a section 103 approaches has taken two to the article entirely brief is devoted to almost urged First, disclosure. it is that argument Palmquist, urging based on “merely article identifies a bulk that since The News and Observer ar- process being Appel- which is tested.” report appellant’s ticle is a own inven- lant notes that the Patent Officeadmits unnecessary tion it is both absurd and the article does not all disclose the claim- require it, citing him to swear behind structure, ed nor does it disclose the na- 715.01(c). M.P.E.P. curing process. argued ture of the It is thinkWe the contradiction between the merely that the article is “a disclosure of argument appellant’s two lines of is more early experimental Dr. Hassler’s work” apparent it, ap- than real. weAs see being preclude which is now used to pellant arguing that The News and patenting of “the ultimate commercial complete Observer article is dis- not reality experiments.” Appel- those closure, and so much as of the invention lant reasons that: prior was disclosed therein was made Since the News and ar- Observer publication Nevertheless, thereof. published ticle was at a time when argument concerning the line of the un- experimen- the invention inwas availability of The News Observer stage, appellant tal is entitled to the by article has been rendered moot our ‘hospitality’ accorded law and the Foster, recent In decision in 343 F.2d re disclosure of the article should not 980, CCPA-, aspect in which that strictly against be construed him. Palmquist appellant of In re on relied support explicitly view the for fact that the was overruled. article does structure, ap- not disclose all the claimed agree We with the board’s hold pellant states that The News and Ob- ing that The News and Observer article “clearly server article does not con- is a valid reference under 35 U.S.C. § statutory sistitute a bar.” 102(b) therein, what disclosed for Appellant position, public takes a second since was available major part relying Palmquist, year prior applicant’s In re more than fil 547, Ruscetta, F.2d CCPA to the effect date. In re 255 F.2d present 968; Foster, the “board’s supra. 45 CCPA In re therein is disclosed to determine what not removed disclosure, ap- taken with merely and whether discloses because it reference art, stage prior renders early the claimed invention, pellant’s anor own skill to one obvious invention, publication, of that art. public having available to the been may year, article con- The News Observer not overcome more than a *3 text, photographs, showing prior and a three of invention sists diagram, being reproduced question the last here: The then date. way pertinent part prepared the article text the same market conventionally-cured states: * * * * * * BULK LEAF METHOD CURING bulk-curing process new READY FOR FARM TESTING tobacco is in frames By Byrd. Tom armful, rather than on sticks tied ****** three or four at a time. leaves More Uniform Leaf Two men can frame the tobacco also has the [the method] “It place rapidly it in barn as potential producing more uni- prime as at least four can men leaf,” said, form Dr. Hassler “which present from the field. barn- Under grading will make easier.” ing methods, about 10 barn hands special required keep up barn is to bulk- needed to four However, primers. cure tobacco. leaf cured tobacco. the research and new that the ful to sler market. no major aged flue-cured tobacco. in the bulk-cured and ples of tobacco bulk-cured at Oxford station last summer aver- ^[*] Laboratory “Throughout ^[*] significant process continued, $62 compare factor ^[*] ^[*] present curing per New we have been *(cid:127) # tests hundred on the “we have chemical differences our Approach Representative those development characterizing work,” show there ^[*] # conventionally- Therefore, qualities method is recognized very ^[*] (cid:127)* Dr. Has- of this care- sam- open ^[*] ^[*] our *4 being supported by posts in holds the walls visible at the frame is special frames are shown which hold the tobacco The third The second ers Watkins move a frame of tobacco Frame holds 10-12 sticks. hold it in frame are WILEY caption lifting barn, loading tobacco, photograph apparently therein, HENSON photograph states: place. pushed through while chamber. Two racks special and is one end edges (left) shows the supported other shows two captioned: “frame” curing end tiers each frame Rupert interior barn. of each on the center photo. which work- characterize our INTERIOR OF BARN used bulk flue-cured tobacco.” curing is shown here. Hot photograph The first shows a worker up moves the floor and placing trough-like tobacco leaves through the frames of loading having bin. A horizontal bar Two-thirds as much tobacco could long spikes extending numerous down- cured in this chamber as in x 16 a 16 disposed ward therefrom is above foot barn. loading tobacco in caption bin. The states: appealed applica- The disclosure of the places BILL readily JOHNSON apparent tobacco into tion will be cer- curing. Spikes

frames top drawings: tain *5 14 Fig. end wall and longitudinal left section view area between 5 shows leaving ports 16). 38 Fig. partition curing barn, Hot air and 3 shows a 3) through (Fig. drying passes 26 through tobacco cross-sectional view Referring Fig. 5, special 24. Dimensions portion. frames racked chamber (i. frames,, partitioning e. barn moved from of the furnace 30 air which is heats 20b, Fig. 20a, 3, partitions and (delineated by area consider the furnace room pack- 14, 16), Fig. leaf right partition and close walls wall 18 and between end “ * * * force the through such as to 16) by are 36c duct blower the bulked (delineated to flow between drying air circulated into chamber (not shown) tobacco The air leaves.” then via exits side-member spikes, receives the upper damper 40. Element 44 is a duct and the two side-members together by and (Fig. 7). outlet duct 46 communicates to fastened rods end adjustment atmosphere. By loading panels 6) outside (Pig. The bin end damper, varying amounts of fresh away, swung completed are then may sys- heating be admitted to the frame or rack of tobacco is lifted out “ * * * tem, and, desired, if duct positioned curing barn, being and may closed, such that the air within (Fig. 3), slid thereinto on rails 22 mount- system is recirculated without addi- partitions 20a, 20b, ed cycle particular tion of fresh air.” A the sidewalls. temperature throughout humidity Figs. correspond first 3-stage 6 and 7 drying process is disclosed. photographs two of The News and Ob- process used exception server with the loading the frames racks with or tobacco manipu- photos workers are seen in the Pigs. leaves to be dried is illustrated in lating bin or and frame rack of loading open 6 and 7. The bin has an top open side. Tobacco leaves Appellant’s end representative butt into first the bin and a claim pressed frame or appeal, rack side-member 54 is 9-15 on claims reads as follows downwardly spikes except breakdown, numbering to force the emphasis the tobacco leaves. second and are ours: Apparatus comprising 9. for bulk tobacco leaves plurality supporting

A. a of tobacco racks called [also leaf by appellant], including “frames” each said racks sec- apart to tions movable receive a batch of leaves gen- disposed in bulk form with the flat surfaces thereof erally in por- one direction and least a substantial generally parallel tion of the flat surfaces of the leaves *6 together support movable pressed of the batch leaves in a com- together state, the sections of each in- rack when cluding continuously peripherally confining means for along straight pair of parallel batch of leaves first sides pair straight parallel extending and a of per- sides second pendicular extending spike to said first sides and means peripheral confining within' pair means between of parallel piercing sides thereof in of relation to batch perpendicular leaves parallel in a generally direction provide flat support surfaces thereof so as interior permitting the leaves while flow of air between leaves confining disposition within the means direction of the flat surfaces thereof, supporting

B. plurality a barn structure for said of racks together supporting when the re- thereof are sections respective leaves, lation to of tobacco said barn batches including structure extending spaced pairs elongated horizontally 1. means, rail pair substantially providing

each of rail means upwardly facing supporting continuous surfaces disposed generally plane, horizontal same being said rail means included within said barn supporting structure with the surfaces of each spaced apart pair suf- means a distance of rail engage support group of racks said ficient to side-by-side with relation the first sides confining peripheral extend- means of racks said adjacent horizontally supporting sur- said adjacent adjacent faces with second sides extending horizontally therebetween sub- racks stantially abutting relation, including wall means barn vertical

2. said structure sup- extending upwardly and a from floor roof floor, ported by wall said said vertical means above being disposed verti- said rail means within said positions floor and wall cal means at between said defining roof, with said wall means said vertical said spaces upper and lower air dis- and said roof floor means, posed respectively rail above below said including door means closable said vertical wall pairs adjacent means one end of of rail means said horizontally openable provide completely access permit supporting across surfaces to the associated supporting groups moved said of leaf racks to be sliding side-by-side relation horizontal into said surfaces, along supporting the associated movement wall means said barn structure vertical confining di- thereof said door means closed spaces rect said air vertical communication between solely occupying spaces between to the rack defined pairs supporting pair of each of said surfaces means, of rail having pressure

3. means a suction side and a side fan creating air, flow of a forced communicating pressure 4. means for and suc- spaces tion of said fan means air sides with said path respectively circulatory to establish a so as including generally air of air flow vertical flow occupying spaces, said rack *7 heating flowing path, air 5. means the in said introducing of 6. and controlled amounts means for atmospheric exhausting into controlled air flowing path, air from the air in said amounts of heating capacity means, the of said said fan exhausting introducing air and means and said being such that of a desired means sufficient air temperature moisture forced and content can be through vertically occupying generally rack said spaces yellowing supported a of to effect the leaves racks, subsequent drying thereof, a and said ordering final the leaves. of top depends of extend from the from claim and air outlet conduits

Claim sup- parts specifies of the barn. the furnace various of rail means to to two tiers containing conduit, port several second air the frames or racks peak inlets, the depends air in the 9 and is Claim 11 also from claim downwardly specifies pair conduit extends barn. the two tiers rails and That along curing bam, the floor partitions cham- at one end of the of inner in the through furnace. depends a blower into the from claim and ber. Claim By system, defining additionally specifies is heated means of this air walls adjacent the and circulated outlet con- room the cham- furnace may throughout depends barn and claim 9 duits the entire Claim 13 ber. by way specifies be returned of the inlet conduits. “for humidifier introduc- into a controlled amount of moisture” teaching The et relied Stevens al. circulating air. Claims 14 and 15 are pertains to the disclosure the board independent form, to similar claim supplying to means for moisture additionally specifying sep- with claim 15 air, a water- which means consists of dampers arate for each lower air duct. terminating spray line in a nozzle which There are no allowed claims. path located in between unnecessary furnace and the horizontal air outlet We deem it set forth any analysis conduits. et al. further of how The Stevens states: applied and Observer article was * * * purpose of The con- It claims. will be evident from com- very is to introduce struction moist parison diagram reproduced above air into the tobacco barn after the with the elements claim that there tobacco has been cured. This re- lacking. are but few claim elements Be- enough stores moisture to to- missing cause some claim limitations are maybe so bacco that it handled with- from the examiner board crumbling. out evidently right viewed the loss to in- using While Stevens et al. discloses that question volve the of obviousness. Both humidifying device has tobacco after appellant and the solicitor in briefs their cured, been are here concerned we with similarly aspect characterize that structure, not see method. We do not supply missing elements, issue. To any difference the “humidifier” means Appeals “judicial the Board of for in has taken called claim 13 and that shown quite in Stevens et al. et al. Stevens also notice” of several elements and has also in the same shows humidifier secondary relied on references. context, that of an air cir- particular, “judicial In tthe board took culating curing apparatus. tobacco dampers,” notice stated that it teaching al., view of of Stevens et practice conditioning “common in air provide it would be air hu- obvious systems introducing provide means for midifying conjunction * * * means exhausting controlled curing apparatus claimed. system.” amounts of air from judicial board also notice took unnecessary judicial It take was separate common to have a furnace room dampers notice of as recited *8 building. in a The board relied on the ar- claims since The News and Observer following references: damper upper ticle shows means the Further, al. exhaust conduit. Stevens et 2,752,096 26, et Stevens al. 1956 June (in Fig. 1) T-junction in shows their a 2,808,283 1, Vickers Oct. 1957 leading peak the air from the conduit al, Stevens is et directed to tobacco of the barn down to the furnace. The a employing T-junction curer the circulation of heated leads short distance comprises air. The wall to disclosed the barn the outside atmosphere, a small furnace on the the outer floor in and at end there- hinged flap- appears conventional tobacco bam. Horizontal a conventional

919 Judge (concurring). SMITH, hinged and conduit type closure. That type of conven- appears my publication to be opinion, closure In the well is damper, function Raleigh and its tional on November News and Observer year prior to 10, 1958, known. more one than enabling filing date, dis- appellant’s anis agreement complete are in Also we invention so the closure which described for providing doors that board with the ordinary skill one of here claimed that obvious; curing would chamber the though flue-curing said art can be in the tobacco Ob- and in The News not shown possession invention to have had article, inherent. is structure such server references time. The additional that purpose of for Vickers was cited one evidence of what are at best cited showing the tobacco in which a frame ordinary ex- in art would be skill this hanging impaled in a cur- leaves are pected know. to alternatively ing re- barn. Co., Corset In Cohn United States v. showing, in the that lied on Vickers for (1876), 377, 366, L.Ed. 907 23 U.S. photographs of first two event that the guiding principle the Court stated con- Observer were not The News and applicable I here: which think is structure all detailed to show the sidered * * * say dif- that the claimed. Suffice evidence shows that tobacco ference between Vickers’ specification, in connec- the Johnson capacity. one of stick and that claimed is the known state tion with tine-type stick to Vickers intends his and it was art at time when filed replace without an the traditional stick published, to enable was sufficient capacity secured in increase one skilled in the art of corset-mak- capacity in is not thereon. An increase jacquard in the use of the * * * claim, structurally in the but reflected patented corset. to make the any is evident from event [Emphasis added.] Observer, in The disclosure Sheppard, In re 339 F.2d See also hold “10 each frame is said to which 859; LeGrice, F.2d In re CCPA Any to 12 details of sticks” of tobacco. Wenzel, 1124; In re CCPA as does a frame which would function 501, 24 F.2d CCPA 1050. claimed, that if shown The News not quite sup- well Observer urges pub- Appellant that since by plied equivalent structure Vickers. experimental lication describes his own work, of inven- it is clear his date whole, Viewing the record as a publication date. earlier than the tion is are satisfied that the board did not we true, undoubtedly ex- no While application pertinent err in its 102(b) ceptions provided under § art knowl to the claims. view the when, here, de- was the invention edge one skill in this which printed publication. patents scribed in possesses, art as evidenced al., et The News Vickers Stevens urges Appellant make sub Observer article would “strictly should be the end construed” to ject entirely presently matter claimed invention in an ex- that since the was has obvious. Since the claimed stage publica- perimental on the date of public more than been obvious to the tion, appellant “hos- entitled year filing date, prior appellant’s we encourage pitality” accorded law to right appellant hold patent his to have lost experimentation development and further 102(b). In re under 35 U.S.C. § application of an invention before Foster, supra. Congress has seen fit to filed thereon. foregoing, In view of the the decision period “hospitality” fix time for such *9 of the board is affirmed. year publication one the date describing do and we can Affirmed. nothing except publication it spelled about review ments in In out compare LeGrice, supra, the invention claimed and the re and the cases therein publication. in the invention described discussed. Appellant urges done, not, therefore, regard when I do this case involving under 35 U.S.C. § There are two fundamental rea- agree fully I 103 and with the statement why the sons News Observer appellant’s in brief that: article not does meet such strict * * * First,

tests. not unequiv- article does It can be stated ocally all of the present disclose structural that if claims are unpatentable, limitations set forth in Second, claims. held to not be it completely the article lack- Dr. Hassler to make because failed any invention, solely disclosure how com- but Dr. because plete be sufficiently diligent structure could used ob- not Hassler was long tain the filing results alluded to. application. So his as the article includes these defi- To the extent the resolution of the ciencies the invention has not been requires issue here determination possession pub- (cid:127) patentability under as the section lic, nor would one skilled the art majority indicate, seems to I re- would enabled make and use the more, fully verse for the reasons elab- practice structure or to the inven- my dissenting opinion orated Foster, in In re tion. F.2d CCPA -. I However, have reviewed the Ob- does not seem me that this appellant’s server in view presented pub- issue is here since the position and have upon concluded that it does lication relied “describes” convey to one of meaning skill in the claimed invention within the flue-curing 102(b) art a many sufficient dis- section decisions permit closure of the interpreted invention to it to be which have I it. therefore put practical operation. into Hence, it concur in the result reached do so but seems to require- solely me it meets the on this basis.