Opinion
No. 8748.
Decided March 19, 1945.
Appeal from the District Court of the United States for the District of Columbia; Leslie R. Darr, District Judge.
Proceeding by W.M. Welch Manufacturing Company against Conway P. Coe, Commissioner of Patents, to obtain a patent. From an adverse judgment, plaintiff appeals.
Affirmed.
Mr. Raymond L. Greist of the Bar of the Supreme Court of Illinois, of Chicago, Ill., pro hac vice, by special leave of Court, with whom Mr. Earle D. Crammond, of Washington, D.C., was on the brief, for appellant.
Mr. R.F. Whitehead, United States Patent Office, of Washington, D.C., with whom Mr. W.W. Cochran, Solicitor, United States Patent Office, of Washington, D.C., was on the brief, for appellee.
Before MILLER, EDGERTON, and ARNOLD, Associate Justices.
This is a proceeding under R.S. 4915. The claims are for a method of making fused quartz articles. All claims were denied both by the Patent Office and by the District Court. On this appeal, it is contended that the claimed invention lies in the use of silicic acid, "an entirely different chemical compound" than powdered quartz crystals or other powders, in the first step of the process. This is the vital point, says appellant, at which the claimed discovery differs from the prior art references. We agree with the District Court and the Patent Office that the methods described do not rise to the dignity of invention.
35 U.S.C.A. § 63.
Radtke Patents Corporation v. Coe, 74 App.D.C. 251, 268, 122 F.2d 937, 954; L. Sonneborn Sons, Inc. v. Coe, 70 App. D.C. 97, 100, 104 F.2d 230, 233; Minnesota Mining Mfg. Co. v. Coe, 69 App.D.C. 217, 220, 99 F.2d 986, 989; cf. The Mathieson Alkali Works, Inc. v. Coe, 69 App. D.C. 210, 214, 99 F.2d 443, 447.
Moreover, an examination of the claims in issue before the District Court and the Patent Office tribunals reveals that when they were drawn, the so-called distinction was not in the mind of the inventor. Instead, it is an afterthought. Appellant seeks now to abandon the issue tried in the Patent Office; rid itself of the other claims and the specifications which reveal a concept of use in the unqualified alternative of powdered quartz or silicic acid; read into the remaining claims a new concept, based upon "an entirely different chemical compound;" and secure an adjudication in this court of an issue not heretofore presented. This amounts to an attempt to secure a patent upon new claims, not considered by the Patent Office, and cannot succeed.
Cherry-Burrell Corporation v. Coe, 79 U.S.App.D.C. 124, 143 F.2d 372; Lucke v. Coe, 63 App.D.C. 61, 69 F.2d 379; Shoemaker v. Robertson, 60 App. Div. 345, 54 F.2d 456.
Affirmed.