113 F.2d 512 | D.C. Cir. | 1940
The appeal is from a judgment of the District Court dismissing the complaint as to certain of plaintiff’s claims in an action to authorize the Commissioner of Patents to issue a patent.
The claims relate to a “sandblast stencil.” This is a sheet of material which is affixed to the surface of a stone in which letters or- figures are to be cut. The stencil is cut to form the letters or figures desired. The engraver uses a gun which propels particles of sand against the surface, cutting out the design formed by the openings in the stencil and leaving the rest of the stone intact. As the trial court found, “Prime requisites of sandblast stencil sheets are that they must be sufficiently strong and resilient to withstand
Plaintiff’s stencil is strong, resilient, flexible and easily cut. The adhesive used is “pressure-sensitive,” requiring no moistening for use. It is readily removable and does not discolor the stone. The stencil is described in plaintiff’s claim 38 as “sheeted material comprising a flexible mass containing as ingredients thereof bone glue siftings, rubber, whiting, solros, factice and a solvent and a normally pressure-sensitive rubber-base adhesive coating affixed to one surface thereof, said composite being inherently blasting resistant.” The trial court found that this claim, together with claim 39, which specifies the proportions of ingredients used, described an invention, and authorized the 'Commissioner to issue a patent. Since the Commissioner has not appealed, the sole question here is whether plaintiffs other claims should have been allowed also. Claim 13 is the most specific of the rejected claims, and is fairly representative of the others: “a sheeted material comprising a rubber-rosin glue inherently blasting resistant backing having a layer of normally pressure-sensitive blasting resistant adhesive material affixed to one surface thereof.”
It is contended that claim 13 and the other disputed claims are invalid on their face.
As thus indefinitely phrased, the claims in issue have been anticipated by the prior art.
The judgment of the trial court' is affirmed.
The action is pursuant to Rev.Stat. § 4915, 35 U.S.O. (1934) § 63, 35 U.S.O.A. § 63.
Oroskey patent 445,241.
Carufel patent 1,560,407.
Smith patent 1,882,526.
See General Electric Co. v. Wabash Co., 1938, 304 U.S. 364, 368, 58 S.Ct. 899, 82 L.Ed. 1402.
Rev.Stat. § 4888, 35 U.S.C. (1934) § 33, 35 U.S.C.A. § 33; General Electric Co. v. Wabash Co., 1938, 304 U.S. 364, 58 S.Ct. 899, 82 L.Ed. 1402; Koebel v. Coe, 1939, 70 App.D.C. 261, 105 F.2d 784. The claim held to be too indefinite in the General Electric case was: “A filament for electric incandescent lamps or other devices, composed substantially of tungsten and made up mainly of a number of comparatively large grains of such size and contour as to prevent substantial sagging and offsetting during a normal or commercially useful life for such a lamp or other device.” 304 U.S. at page 368, 58 S.Ct. at page 901, 82 L.Ed. 1402. The invalid claim in the Koebel case was: “a setting for diamonds consisting of a base metal alloy the principal ingredients of which are molybdenum, copper and cobalt so proportioned as to be capable of being sintered at a temperature below that of the critical point at which the desirable qualities of the diamond are adversely affected, said alloy when so sintered having the property of wetting the diamonds coupled with a lack of avidity for the carbon thereof and, when thereafter cooled, of closely adhering to it.”
Cf. General Electric Co. v. Wabash Co., 1938, 304 U.S. 364, 58 S.Ct. 899, 82 L.Ed. 1402.
See notes 2, 3 and 4 supra, and text.
Drew patent 1,760,820, Reissue 19,-128;
Ellis patent 1,830,428.
See note 4 supra.