*1 411 adjustment appellant’s proof keep man width and means it in the desired recognized by position, produces ner. This was the Board no new functions with (R-59). patent respect parts individually any an “A mechanical to the nor ticipated prior surprising parts con device of like new or result of the as capable performing Supreme struction and sembled as a The Court whole. Carnegie function,” Co., the same in Graham v. John 86 S.Ct. [Steel Deere Co.], 684, February 21, 1966, v. Cambria 185 U.S. forth the Co.] has set [Iron 403, ^[*] ^[*] [22 S.Ct. 698, 46 L.Ed. 968] tests for which, obviousness under when to the facts U.S.C. here, § should, believe, I result in affirmance device, We do not think Fiad of the board. interpreted by solicitor, of like performs construction which same appellant’s

function as device nor does rotary

make obvious “a water seal and retaining holding spray means for said any rotary position

tube selected with

respect means,” to said carrier as defined in claim 3. think We it is too strained

argument adjustable to maintain that an spray pattern may

width obtained device, by initially ignoring the Fiad 53 CCPA Robert L. DREYFUS and John W. teachings Fiad, construing Harrison, Appellants, rotary “screwed” connection to mean “a v. retaining water seal and means.” See In Thornhill, 463, STERNAU, re Appellee. 305 F.2d 49 CCPA 1179. Martin M. Appeal Patent No. 7563. Considering the be differences sought subject tween matter to be United States Court of Customs patented teachings single and the Appeals. prior record, art reference we do March 1966. subject find that matter as a whole would have been obvious at the time the person

invention was made to or dinary skill in this art. 35 U.S.C. §

The decision of the board is reversed.

Reversed.

KIRKPATRICK, Judge (dissenting). agree

I cannot the decision

majority as to the non-obviousness majority opinion points

invention. The sprinkler

out that nozzle of Fiad is

attached his a threaded connection to oscillating carrier, appears me and it quite that, obvious if nozzle is turned thread, pat- spray on its width vary. pre-

tern fact will that Fiad vary ferred other means to the width pattern does not affect the obvious- physical

ness of this fact. disclosure, providing a

Given this

joint permits the rotation of the

nozzle, joint means to make the water-

412 Washington, (C. Guttag,

Alvin D. C. Cambridge, Mass., Parker, Edward counsel), appellants. for Detroit, Blair, Mich., James

John A. Heilman, Washington, C., ap- D. for M. pellee. Acting Judge, RICH, and Before Chief ALMOND,

MARTIN, SMITH, and Judges, Judge KIRKP H. WILLIAM ATRICK*

ALMOND, Judge. appeal from the decision

This is award- Board of Interferences subject ing priority of the of invention 93,409 to No. matter Sternau, interference party, application the senior 15, 591,628, June serial No. filed single copied from is a In issue count 2,976,655, granted to U. Patent No. S. (Drey- junior parties, et al. 20, August fus), application filed on an assigned patent R. 1959. The to W. Co., application in suit Grace & assigned to the Chemical Co. Dow count reads: forming

A method a cover comprising positioning edge an elastic a film of a container, beyond lip of a over and maintaining pressure over on the film forcing container, the excess downwardly around the container gathered heating form a skirt briefly to shrink band said skirt gathered provide a the skirt and relatively edge. elastic appeal are The issues raised (1) support can certain whether Sternau count; (2) limitations whether complies Sternau’s 112; (3) count whether § U.S.C. application. matter is new in the Sternau issue, Dreyfus As to the contends first following support cannot (1) providing limitations: edge; (2) positioning a film energy polymer; (3) fore- judge Judge WORLEY, pursuant provisions United States Senior District Pennsylvania, 294(d), des- of Section the Eastern District of Title United States ignated participate place of Chief Code. downwardly lip around around the excess film container. This container; heating (4) usually a band thickened 5 to about Drey- briefly. agree with said skirt times as thick as the film As We itself. result, edged fus lack Sternau’s cover for above, the first forth set formed. The cover can be open thus need not consider the other matters removed to the container and then *3 by appeal. again raised this can be as a cover for the elasticity. container due to its Procedurally, appeal to this comes history. Dreyfus alleged court with this describing operation the of ma- a filing of no date the date earlier than designed provide chine to covers milk party the senior and he was ac- hoods, trays bottle TV dinner and the cordingly placed order under to show like, Dreyfus states: why judgment cause should not be en- downwardly blowing After air the against Dreyfus by responded tered him. has formed the shirred then the skirt moving ground dissolve on the lip is cone lowered further so the supported by the count is not Sternau’s flange of or the the container rests on disclosure, and that that disclosure is impluse sealing ring, circular about % fatally fails to defective com- edge inch from the all the around with ply requirements with the of 35 § U.S.C. gathered film between the wire and by pri- motion denied was lip sponge ap- of the dish. The mary Dreyfus thereupon examiner. re- plies slight pressure top on downward quested hearing final set for of the dish to maintain intimate con- in his consideration of matters set forth impulse tact all around. The sealer motion to dissolve. The of Board operated, by heating, is then i. e. held Interferences that Sternau could F., second at 450° seal support all 1% the material limitations in the generally wrinkles and shrink the film count. provide gathered relatively a but According pro- Dreyfus, the covers edge. ours.) (Emphasis by vided the method of count have variety including refrigerator a of uses Dreyfus, portion In still another of covers, tray- bathing caps, dish following describing is stated in packed foodstuff covers. One method operation employed making bathing by having achieves a cover caps energy from shrink material: edge is described only A controlled amount of heat should follows: on act disk each of film material. Con- operating according to the in- sequently, resistance wire after its positioned vention the container is original energization almost is im- turntable. The irradiated of mediately of timed out the action biaxially polyethylene oriented from timing device. Time-out ac- varies g., thickness, is 0.5 to e. 3 mil mils, of cording to the of thickness nature positioned top then over the film, example, if but the film container. The lever is then lowered polyethylene be mil thick irradiated upper diaphragm portion until the ring the diameter of re- engages diaphragm the film. The approximately sistance wire be 3% only place holds the also inches, ap- time-out should occur after evenly overlying edges bends down proximately 120 watt seconds have been of the film. hot air The blower released the resistance wire. then The started is the turntable. Dreyfus defines the term “elastic” as against place hot air forces the film follows: the sides the container while at the same its time the hot air also term “elastic” is used in shrinks popular prop- possessing film. a result the film a * sense as As forms * extensibility erties of thickened or bead and retracti- count, bility rub- calls for a associated with vulcanized it will be noted that it cover made of a film of a shrink ber. energy polymer. apparent It provision “a Sternau relates to being ply, Sternau’s outer aluminum inexpensive, simple closure which construction, paper possibly cannot fit irrespective for a hermetic seal description “film is made the container whether polymer.” energy no There is aluminum, steel, paper, plastic, etc.” The dispute however, is, as to There this. may an inner closure consist of either dispute some as to whether the transparent component oriented of a sheet, plastic denominated otherwise plastic alone or in combination with sheet shrinkable, Sternau as semirigid, component mold- an outer material, inherently a material aluminum, material, paper, such as able energy. proceed We will glass, steel, plastic, etc. *4 assumption on the the shrinkable that portion pertinent of Sternau The most plastic sheet does meet the limitation purposes appeal reads fol- for of this as the as a count to a film of lows: energy polymer. Thus, regard it is with may using A single-ply made an outer closure be copier to the inner cover that aluminum, paper, cover of patent, of the claims from the etc. as for a shrinkable a retainer support must for establish the invention substantially plastic sheet, which is of the count. larger than mouth of the con- the Considering above-quoted passage the placed plastic tainer. The sheet is further, from it is noted that Sternau container, top of the and the cover upon ply heating, the inner shrinks snapped will onto This the container. tight such a as to form seal manner a the create the condition that essential the of around rim the container. Noth- of film is held across the mouth flat ing concerning is mentioned the elastic container, the rim of the the while properties ply in of its shrunken the inner arranged is rim of the film around the to state. The outer cover is stated have beyond protruding pleats pleated rim, expandable, an but it is not Thus, is the outer when heat cover. readily apparent from the rim, protruding applied to the the how this construction is achieved. conforming shrink, shape the will to any case, bearing it has no on the con- forming of rim the of the container ply, of is struction the inner which the rim, tight around said therewith seal one we with which must be concerned. is remainder of the film while the pulled tightly the across the mouth of It is further noted that Sternau com- the container. This advantage method has third pletely passage under dis- silent in the be outer cover can the cussion, throughout his dis- as well disturbing removed the seal without closure, specifies operat- his as to the of portion the closure. specifi- conditions. While Stemau’s advantage process has the additional may applied cation states that “heat be repeatedly that the outer cover can be air, electricity, water, steam, hot hot snapped the back onto taken tempera- open flame,” off or even no original losing container without its step; given heating no tures are for the snapping efficiency con~ onto the length time mention made to the twiner, locking to belowits rim due heating subjected ply the inner con- expandable, pleated (Em- rim. its ditions, specific are and no materials ours.) phasis description mentioned which fit the foregoing plastic shrinkable or a heat shrink- sheet It will noted that be closure, Moreover, two-ply no passage able oriented film. there is describes a ply being plastic inner hint in that the should ply Sternau inner of a being reap- aluminum, being capable of removed and ply be sheet and outer plied Referring to the container which it seals. paper, plastic, back to etc. mind, But that to achieve such result. With the above we now turn ditions upon the issue the criterion consideration of decisions below. is not inherency is resolved. Dreyfus’ reply motion to dissolve based on the contention Sternau does By copying from an claims “gathered forming disclose lacking express support patent, issued primary edge,” ex- therein, limitations found aminer stated: First, burden. was faced with a twofold * * * * * * however, copying patent Ster- one a claim from specification points nau out instituting purpose interference arranged film is around rim of applica proceedings must show his pleats” the container “in and that Jepson clearly supports tion the count. to the “rim” of the film to Coleman, 633, v. 314 F.2d 50 CCPA engagement cause it to shrink into applica must no doubt There that an rim container. Since every tion discloses material each method, count is directed to a it is the claims and all doubts consequence pleating no against Jep copier. must be resolved done an outside cover member. supra; Coleman, Bierly Hap son v. v. Also, since the material is a cover poldt, 201 F.2d 40 CCPA 774. Sec plastic film and since it shrinks ond, on an where must be based form a bead or raised around the

container, inherently disclosure, it must “rela- be inherent it is not sufficient tively elastic.” person following that a the disclosure might in obtain the result set forth adopted The board the examiner’s hold- counts; inevitably happen. it must ing without elaboration. Morrogh, Crome v. F.2d Implicit holding in the examiner’s CCPA 704. the conclusion that ex- Sternau does not There filed in record an affidavit pressly having disclose a rela- cover a Sternau, pertinent behalf aver- tively edge. elastic concur in this We ments of which read as follows: However, per- conclusion. we are not * * * and he has conducted ground suaded that that there is sufficient experiments had conducted vari- with holding that Sternau’s cover must ous heat shrinkable films oriented inherently edge. have an elastic Ster- substantially larger than wherein film nau, application we are faced with an laid the mouth of a container has been completedly specific teachings devoid of container, across the mouth of the as to question. crucial matters periphery film ar- has been specific Were there some indication ranged container heat around the employed, process materials or the con- periphery to has been to the ditions to which the broad class of ma- closure; shrink the film and form a subjected, might possible terials are be ** * he has that all found to establish that in the limitations oriented film the heat shrinkable inherently count are met. But in these tested, described, produced as a matters the More- silent. gathered extending pleated down- skirt over, any we in- cannot find in Sternau wardly around when dication that he an inner cover desired film, arranged periphery of the was reapplied which could removed container; around the might teaching the container. Such a ** provide a basis for an inference he has that all found relatively inner cover did in fact have a film of the heat shrinkable oriented edge. doubt, produced elastic No if such as closure were tested described a ordinary having relatively contemplation, gathered within his one of a but process edge permitting repeated art could devise con- removal and-' skill of in- replacement Under the law oriented film. the closure on the con- upon herency, ; it is incumbent tainer shrinkable, oriented that a heat * * establish * that, a of his ex- result energy. necessarily shrink has a perience experimentation, he be- any heat lieves of the available appears to have examiner laid films can be shrinkable oriented inherency. He misconstrued the law arranged a container across and around of the materials found that since some gathered pleated to form a skirt disclosed films of gath- produce a closure will in the known shrink were gathered pleated ered skirt with date, filing prior art to Stemau’s relatively skirt when also known since such films were heat shrunk. shrinkable, films, the latter phrase, lead to following would used make the observations We regard selection of a film of to the affidavit. Affiant has with energy polymer. nine averred that the available tested. oriented films were differing apparently with the While tested, how While various films were apply, proper to the test examiner as many particular do not ones we agreed the examiner's the board process know. Nor do we know what inherently sup- holding that Sternau employed. conditions were While question. ported the limitation three are factual ex- first averments actually The resolution of this issue pression, any pre- no data sort are point. Both turns on narrow clearly sented. The fourth averment parties agree description “a expression opinion. of affiant’s energy polymer” film of a density, of low does not include view, violence our it would do dispute polyethylene. The hot-blown regarding principles in the well-settled description heat as to arises whether herency to hold that disclosure Stemau’s *6 by film, employed shrinkable, oriented and affidavit sufficient evidence contain density, Sternau, hot-blown includes low finding that the material warrant polyethylene. does, follow- If it then one inherently question dis is limitation in might teachings low select Stemau’s closed. the and the affi Both disclosure density, polyethylene aas heat hot-blown the davit are couched in broadest shrinkable, pro- oriented film and thus generalities, require a and it would bold not film of a is vide a cover which ipse part dixit our to decide the issue on high energy polymer. shrink question in in Sternau’s favor. density, low evidence that Sternau’s do. we will not polyethylene is not considered hot-blown deciding purposes For whether Ster- shrinkable, oriented in the art as a heat in the nau could in in of averments consists the main * * * relatively [ing] “provid count supra. perti- The the affidavit discussed arguendo edge,” that we assumed nent averments read: support the further limita- Sternau could manufacturing 10. that the film energy poly- tion “a film of a shrink term and utilization industries Turning of the mer. to a consideration film,” generally used, “shrinkable issue, limita- believe that this latter we commercially nine includes all by supported not tion is also Sternau. films; shrink available manufacturing of a film 11. count for use The calls energy terms polymer. It and utilization industries shrink of a “shrinkable orient- undisputed not de “oriented film” or does is that only mean those ply shrink film” are used to ed inner in terms scribe subjected energy. Rather, ply which have been is de shrink films inner stretching, shrinkable, special orien- alia, other scribed, inter heating, processes, de- the film to to induce a cause tation shrink orientation; packaging possible gree in shrink use molecular applications. that, example, low 12. while density polyethylene imposed Chart1 upon film the view the burden by blowing process copier produced is claim con- degree stituting inherently produces Dreyfus a limited count from the patent, persuaded we there- are not of molecular orientation and is shrinkable, generally con- limitation as to a film of a fore is not shrink inherently supported is sidered to be “shrinkable oriented only foregoing passage film” Sternau. The from film" but rather “shrinkable Modern special process Plastics den- no orientation indicates low since sity, polyethylene utilized; hot-blown is both heat manufacturing the Shrink polyethylene which p. s. chart of shrinkable film shown in the said Films, generally be understood in the film tries the chart on of shrinkable film a “shrinkable oriented film” would “high film” is identical to the disclosure of a 15. 14. ^[******] i.,” except “oriented shrink that, that, that, include all of the nine includes all of the nine Dreyfus Tension the Sternau disclosure of as shown low energy, therefore, Properties and' film”; density “shrinkable except et utilization Range not considered to e. al limitation of g. polyethylene; the Sternau low 100 to 500 column oriented data in density Shrink indus- types types dis- to a by those in hot-blown burden which Lowry oriented the Board of Patent able, oriented film. shrinkable and sufficiently tation versed. his going We think Reversed. preferred position. Accordingly, low-density polyethylene lesser extent that Sternau article cited packaging. Thus, not films. polyethylene it is great may the art convinced that immaterial. film for shrink the law oriented, apparent has than fact that the orien- Interferences mean imposes be a heat shrink- Sternau indicates is not considered other from Moreover, discharged the decision we are low latter is used for packaging on one the fore- types density, it is not albeit not re- closure of “heat Judge MARTIN, polymer” (concurring, “high and to the limitation of SMITH, Judge, joins). energy, g. i.”; whom p. e. 100 to 500 s. *7 application and the disclosures of each unwilling I am to assume Sternau persons ordinary would lead of skill in discloses a manufacturing the film and utilization deciding in whether he can types industries to use the same edge.” “relatively limitation film. it, assumption, As I if see we make “relatively edge” inherently must Arrayed against page evidence formed in be Sternau. Encyclopedia 488 of Modern Plastics (1964 ed.) pertinent part: which in reads However, agree majority I with the general; however, that Sternau cannot make limitation film is blown energy polymer.” by good physical prop- “a film of characterized gives my view, analysis equally re- erties and of the facts a film that is lating that limitation shows board oriented with and direction to across the failing appreciate (thereby producing erred the distinc- extrusion some in to types strength). polymers called increase orienta- tion in This between

tion, although great, by for it is not can also in the above Lowry chart, prop- in Plas- 1. Robert D. Modern which forth data on tide sets (1963 ed.). Packaging Encyclopedia Lowry in 223 tide Robert ModernPlas- tic D. Judge, WORLEY, and against polymers contem- Before Chief ALMOND, MARTIN, RICH, as “shrinkable SMITH and plated terms under such Judges. “transparent oriented films” I make no intimation plastic sheet.” may in entitled. fact to what Sternau Judge. RICH, appeal is from the decision affirming Appeals Office Board of Patent rejection product claims the examiner’s and 8 in process 4 and claims to 819,106, filed June serial No. Strength “High 9, 1959, for Chlorinated Preparing Polyethylenes and Process Them.” claim is allowed. No improvements in Appellants invented 53 CCPA chlorinating polyethylenes. the art of Application CHAPMAN and F. of Wilbur application points while Cosby. Their out that N. John polyethylenes is known to chlorinate Appeal No. variety of a wide structures of Customs United States Court weights useful molecular to obtain resins Appeals. and Patent many prior applications, in art such 17, 1966. March “generally polyethylenes chlorinated lacking are high strength characteris- required purposes served tics rubberlike, expensive, the more plastic thermo- polyvinyl poly- resins of vinylidine types.” This lack has chloride due, according appellants, part been properties lack of these inherent polyethylene materials chlorinated degradation part polye- and in thylene during chlorination, re- molecules sulting products molecular low weights. According appellants’ brief, by starting using “combined factors weight polye- materials thylenes molecular ten- themselves have strengths, subjecting polye- sile these thylenes to chlorination under such con- weight ditions as to minimize molecular degradation consequent loss strength appellants characteristics” have produced polyethylenes al- chlorinated *8 leged possess “outstandingly [ten- * * strength *, characteristics sile] rendering resulting products useful Hunter, Morristown, J., Elizabeth N. production films, coatings, floor George Campbell, City, B. New York coverings coverings and wall Christen, C., Washington, B. Arnold D. strength durability.” Appellants appellants. emphasize importance of maintain- Moore, C., Washington, the rate of chlorination rela- Clarence W. D. “within Washington (Raymond C., tively Martin, E. narrow limits” to minimize molec- D. weight degradation. counsel), for Commissioner of Patents. ular