*1 274
Justice Holmes v. tect Mitchell v. corruption, ticular rupting gent “ * * * Sheckells, 50 L.Ed. government agencies fee contracts case, influences Flintkote not what was 202 U.S. pointed proscription of contin- was intended it is the Co., justifies * * 71, out done in the Cir., against 79, *. As tendency Hazelton 26 S.Ct. rule.” F.2d par- pro- cor- Mr. Application of John M. CROCKETT and CCFA United and Patent States Court of Customs Philip M. Hulme. June Appeal Appeals. No. 6478. 1008, 1010. if it that even
Thus can be seen acceptability
assumed that letter April plaintiff
sent on defendant
28, 1955, acceptance an offer was the contract, ripened con- into a illegal cited,
tract was under the statute
supra, consequently plaintiff legal against
have the United
States. Kirkpatrick, JJ., Martin dis- equitable Nor is there an or mor part. sented against States, al claim the United for plaintiff here does not come into court attempted
with clean hands. Plaintiff improper
use influence in its effort ob sponsorship indispen
tain which was an
sable condition under the letter of ac
ceptability. plaintiff To reimburse un
der these circumstances would be tanta underwriting
mount use of im
proper influence. we Since do not be improper ripen
lieve influence could contract,
a Government hold
plaintiff equitable no has claim either legal against the United States. together
This find-
ings follow, fact which will be certi- Congress pursuant
fied House Congress, 85th
Resolution 1st Ses- sion. Fisher, Washington, M. Clarence D. C. Mathews, Murray (H. Hill, J., Hume N. It is so ordered. counsel), appellants. Moore, Arthur Clarence W. H. Behr- Judge, JONES, DURFEE, Chief Washington, (Raymond ens, D. C. E. MADDEN, WHITAKER, Judges, Washington, C., Martin, counsel), D. of Patents. concur. the Commissioner
275 treating gray Judge, and “95. A for WORLEY, method Chief Before casting thereof, Judges, SMITH, prior RICH, to MARTIN, iron establishing comprising a Judge a of KIRKPAT- bath H. WILLIAM gray composition contain- cast iron RICK.1 ing 90%, carbon iron more than 4.5%, from from RICH, Judge. to 1.7% manganese 3.5%, from to 1.0% appeal of decision is from the This injecting 1.0%, said into 0.1% Appeals af- of the Patent Office Board comprising bath a essen- mixture firming 95 and of claims finely- tially major proportion of a application appellants’ No. of 96 a minor divided calcium carbide and 305,315 and the “Cast Irons entitled finely-divided proportion rare appealed thereof.” Manufacture being oxide, in- said mixture claims are as follows: gas jected stream with a carrier treating gray- “94. A method the total amount such that casting thereof, com- iron injected is in amount establishing of a prising, bath a range pounds car- to 75 from 5 composition gray contain- iron per metal, and ton of molten bide ing 90%, carbon more than casting resulting molten treated 4.5%, silicon from from 1.7% promptly following car- said metal manganese from 1.0% provide an bide-oxide treatment 1.0%, injecting said into 0.1% product which substan- as-cast is comprising essen- bath mixture tially elemental retained free finely- major tially proportion of rare earth and elemental minor and a calcium carbide divided by the and which characterized mag- finely-divided proportion of presence carbon of uncombined in- mixture nesium said nodular form. gas jected carrier stream with a total an amount treating in- A material “96. amount of carbide gray jection iron to molten range pounds of 75 5 to gray produce upgrade metal, per ton of molten products com- and which cast iron resulting treated major essentially proportion prises following promptly metal molten finely-divided calcium carbide pro- treatment carbide-oxide said proportion a minor admixture having product a re- as-cast vide an nodulizing agent of less tained substantially consisting group and which is than selected .02% elemental of retained free and rare earth by the and which characterized oxides.” presence of uncombined carbon relied on are: The references form. 2,488,512 1949 November May 2,552,204 Morrogh II May 2,747,990 III NELL, pursuant provisions Judge Section for the East States Senior 1. United Pennsylvania, designated 294(d), Title 28 U.S.O. ern District Judge place participate O’CON- un- Appellants’ relates to the references. Claim 94 was considered invention gra- having patentable its over III of cast ground phitic partly in II on the that it *3 proc- art, of step skill of claim be the the in view of nodules. The in the within patent, propor- the to add minor here concerned latter a ess with which we are magnesium supplying of molten tion of the calcium of oxide to consists to a bath gas carrying the former. cast iron a stream of inert of finely-divided major proportion cal- a of agree Of We the proportion cium carbide a minor and of fice tribunals that steps the combination magnesium (claim 94) either of oxide of 94 would have been obvi (claim metal or an oxide of a rare earth person ordinary ous a of skill 95) finely-divided and in a condition patents clearly art. magnesium both The teach that promptly the treated thereafter carbide, oxide and calcium molten metal. individually, promote formation of the re- patents are The three reference a nodular structure in and in the briefs ferred to the and board suppose that, natural in com would be bination, they Morrogh I, II, and will be as and III produce same would the referred so to here. supplement other. effect and each alleges Morrogh assuming, process appellant Even as a for the discloses case, together pro production be that of a corrosion- the the two silicon greater than an effect than resistant cast iron more duce somewhat by weight, effects, percent separate in the of their ten of sum combining feel the them which cerium to the molten idea is added teaching “immediately logically pouring.” The would flow before result is said to iron free from art and therefore that a be a cast joint improved patentable. graphite claim to their use is not coarse flakes with Heinrich, mechanical a freedom In re 268 F.2d 46 CCPA and Accordingly porosity cavities, graphite be- and cases there cited. ing present indicating very finely-divided “in form the affidavits of record finely-divided yields good process of claim 94 re mixture of graphite graphite.” commercially and nodular sults has been success may pure persuasive patentabil ful not cerium be added in metallic are alloy ity form, as an metals or with other as compound.” “a reducible magnesium Appellants contend that Moi-rogh II relates to the process, used in as II in of cast iron which free carbon produce will not nodular structure in present graphite predominantly as in they affi- have submitted form result nodules. This is said purporting davits to establish this. We by adding to iron, obtained molten agree affidavits, considered the have but casting, examiner the board that with the they (magnesia) may which be introduced inconclusive and fail over- are briquettes in the form of which also presumption operativeness come the lime and silicon. contain patent. which attaches Certain given production specific examples III relates are affida- of cast iron which the in which a nodular vits structure was not although magnesium predominantly nodu- oxide was obtained form, process used, appear any lar discloses it does not but thorough investigation calcium carbide entrained was made as to gas in a stream inert various the effect amounts of that casting. substance, appear molten iron before nor does it that it was rejected Morrogh on The claims were an amount used in such as to reduce the primary sulphur as III reference content of the cast iron below Morrogh patents secondary as other states is essen- rogh I, proportion a minor nod add to cause tial metal, cerium, oxide of rare Michalek, 162 F.2d In re ules. See 231, the calcium carbide used 34 CCPA process. III concur are unable to We certain other claim contains While since, our Mor- this composition of the toas limitations original rogh fairly suggest use bath, of calcium the amount agent nodulizing cerium oxide as a used, and the recited the kind conventional cast iron of product, we of the final in claim 95. they point out do not find *4 original place, iron, In the first the disclo- fact, In the unobvious. iron, high-silicon composition sure is directed cast claimed, is to has the which as more than silicon application to be appellants’ in stated 10% purpose for conventionally not over carbon and to the used which is “that 2% range cerium is added is over- gray the to The cast iron.” make resulting objectionable come features is in claim carbide set forth the namely, high content, the pounds per silicon ton one—from 5 to 75 a wide n —and there presence the form nothing the of the in is to show that it carbon is flakes, porosity very of coarse and cavities, coarse involves more than critical or brittle and a hard and judicious selection, is true and the same product. clearly magnesium The does not and calcium suggest cerium cerium com- product. or to the final as limitations pounds similarly in cast would be useful Similarly the statement the cast as of claim contain- “promptly” poured in- after the iron is ing only 1.0,%- 3.5% magnesium jection cal- oxide and up But carbon. even 4.5% regarded as render- is not cium carbide high-silicon iron, cast I does ing patentable, since such the claim predominantly not teach that a nodular procedure in is considered obvious product will result from the use of ceri- teaching Morrogh I that the of the contrary, patent specifi- um. On the put iron “im- additive is into the molten cation states that eutectic carbon is mediately pouring.” before finely-divided graphite, in the form of claim calls for noth- In our only carbon, any, if that it is ing than an obvious combination more which is in nodu- excess that amount nodulizing materials, and the of two old single example In lar form. rogh of Mor- will, therefore, claim this only I, total carbon content is affirmed. be silicon, re- 15% fully met Claim 96 is so broad as be high peatedly emphasizing that with sili- treating comprising by essen- material content, kept con must be low. tially carbide and Though I does not mention ceri- stated, it consider we oxide. As above um we deem be included in it two materials obvious to use these to be together his reference a “reducible broad ceri- compound.” um think would be iron. it also cast We treating teaching Morrogh I is that them as ceri- combine obvious to adding alloys compounds, to the um or its added them if material combining high-silicon to product cast will result in a of additives molten iron. The primarily shown, expedient for exam- in which the carbon is old as is an graphite, form of ple, II in which possibility briquetted and silicon with the of some nodular with lime oxide is being being present. not, re- This would added to the iron. The accordingly think, reasonably suggest jection be to one skill- claim 96 will ed in the art that cerium or its oxide .affirmed. ground rejected produce predominantly on the would Claim 95 was obvious, product in conventional east iron of the view of Mor- be -that Accordingly, compound.” there reducible phasis kind cerium [Em- claimed here. any- nothing suggest is therein to mine.] thing gained by employing ceri- would be ap- Thus, both reference Morrogh III, process um oxide plication equate cerium and reducible production of a which is directed compounds, of cerium ox- iron which composi- one, ide is tions, for use predominantly form. in nodular being one a “conventional” Morrogh patents These two relate other a application produce end use of different materials to iron. The states that products having and, different oxides are used it “enables the because opinion, they properly in our cannot inexpen- rare earths to be used in their reject combined sive, readily available, form,” and Appeals The decision of Board theorizes that: affirmed as to claims 94 and “The rare oxides as used as reversed with the be- invention are injec- Modified. lieved to be reduced
tion calcium carbide at the normal founding temperatures (2400° Judge F. to MARTIN, (concurring part F.) dissenting 2900° the metal baths lib- part). and cerium, lanthanum, erate and other my opinion rejection In of claim contrast, rare earth In elements. 95 should be affirmed. refractory oxide ox- is a Appellants’ specification refer- readily ide is therefore not as nodulizing agents ence to of the some injected reduced calcium car- therein disclosed states: temperatures bath, bide at the of the - impelling “The nodulization may and this be one of the reasons agents, compound in reducible or why if it is as effective in the com- not form, preferably are bination treatment as rare earth simultaneously with car- purposes oxides for of nodulization.” bide, finely they form, divided [Emphasis mine.] may finely be in admixture with the may these While be some reasons of the divided calcium carbide. The nodu- interchangeability for the of the metallic lization-impelling agents, in ele- if forms, and oxide reasons which are not prefer- form, mental or metallic are patent, stated in the equivalency the indication of ably to the molten added simultaneously metal ei- Consequently, is set out. ther with the calci- suggests I feel that the use injection just um carbide or subse- per- of either cerium or cerium oxide to quent thereto, they may be in- form the function which it is used jected finely divided form and in his cast iron. may finely be in admixture with the patent That teaches cerium im- [Empha- divided calcium carbide.” high proves sis mine.] silicon content respects cerium, As a rare earth important producing element in corro- metal, Morrogh I and the form in sion-resistant cast iron. One of the ob- may which it be introduced jects of the I invention “is to patent, I cast in strik- high-silicon provide a cast iron in which ingly parellel language, relates: graphite present finely divided may “The cerium any be added in very finely form or as a mixture divid- form, pure convenient either as me- graphite.” ed cerium, tallic mischmetall, ferro- To that end when cerium is added cerium, cerium carbide or other al- composition “immediately the cast iron * * * loy of cerium. The pouring,” the eutectic may applied separates cooling “on form the form of they point unobvious.” out undercooled equally applicable That any eutec- statement excess of carbon over graph- tic amount in microscopic ite.” A examination sec- I would affirm all according tions aof made claims 94 graph- I invention showed “partly form of opin- ite KIRKPATRICK, J., joins to be in this spherulites.” nodules ion. Admittedly not state graph- substantially that all all However, interest- one
ite nodulized. preparing irons
ed in nodulized hardly
could that the fail note graphite in fact does teach that nodular
exists in the cerium patent.
of the “Morrogh majority 47 CCPA states COMPANY, & MARK CLAYTON suggest cerium oxide does not the use of Appellant, nodulizing agent conventional v. in claim cast iron described (cid:127)kind CO., AND RUBBER KEYSTONE BRASS 95.” I this to mean do understand Appellee. “high majority silicon” that the feels the *6 Appeal No. 6521. Patent patent and “conven- cast iron of the application to be tional” cast iron of the of Customs Court United States non-analogous arts. While Appeals. patent specifically relates to disclosure June 1960. not mean that does suggestions flow from that type such a are limited to disclosure
of iron. dealing with the I believe that one nodulizing graphite
problem in cast with the irons when confronted cerium of think might cause nodulization also including irons, graphite in other cast iron of claim
the “conventional” cast equivalent
Thus, cerium, or its the use of type iron of be obvious to one
claimed herein would ordinary feel, skill the art. also majority reasons stated respect to of com- the obviousness
bining as nodulization materials compositions, that would be ob- references to com- in view of the
vious bine the rare earth oxides and nodulizing composition for The other irons. “conventional” parallel 95 are
limitations respect them, 94. With those of claim said, majority find “we do