Opinion
No. 7414.
Decided May 20, 1940.
Appeal from the District Court of the United States for the District of Columbia.
Suit for patent by Clayton S. Wolf and Harry A. Curtis against Conway P. Coe, Commissioner of Patents. From a judgment of dismissal, Clayton S. Wolf and Harry A. Curtis appeal.
Affirmed.
Robert Ames Norton and Edmund H. Parry, Jr., both of Washington, D.C., for appellants.
Wm. Wallace Cochran and Edwin S. Reynolds, United States Patent Office, both of Washington, D.C., for appellee.
Before STEPHENS, EDGERTON, and RUTLEDGE, Associate Justices.
This is a suit to obtain a patent. The claims relate to a process for making fuel briquets from bituminous coal, and to the resulting product. Appellants do not contend that the product is patentable if the process is not. The District Court agreed with the Patent Office that the claims lack invention, and dismissed appellants' bill.
R.S. § 4915, 35 U.S.C. § 63, 35 U.S.C.A. § 63.
Appellants heat ground bituminous coal with hot non-oxidizing gas, in a retort, in the presence of a non-fluxing binder — specifically, sulphite pulp waste liquor; first to a temperature of about 500° C. and then to a temperature of 700° to 1000° C. Between 300° and 500° C., the heating is at a rate of .5° to 5° C. per minute. The product is hard, strong and smooth, and the process is commercially successful. Appellants made extensive experiments before they developed it.
The Smith patent 1,276,429 forms pulverized coal into briquets and heats them in a retort, using kerosene, coal tar, or water as a binder, with heating stages and temperatures closely similar to appellants'. Smith emphasizes a process in which the material is repulverized between the two heating stages, but he discloses also a continuous process. He does not use sulphite liquor as a binder; but the Komarek patent 1,893,555, for making briquets out of a mixture of anthracite and bituminous coal, states that "sulphite liquor, which has been quite commonly used heretofore in the art as a binder, is very good for this purpose." Smith does not clearly disclose the use of a controlled rate of heating, or of hot non-oxidizing gas; but the Baille-Barrelle patent 1,458,964 discloses a coking process in which coal is heated at a rate of approximately .5° C. per minute, and according to an undisputed finding of the District Court the Illingworth patent 1,496,053, for making briquets by carbonization of coal, involves the use of hot non-oxidizing gas. The Nielson patent 1,886,350 uses hot non-oxidizing gas in the distillation of coal in a retort.
Appellants concede that "no single step of the process is novel per se." Combining previously-known steps may or may not show inventive ingenuity. In our opinion the references support the finding that there is no invention here. "The question for us is not whether in our opinion there was invention, but whether the finding that there was none is consistent with the evidence." Abbott v. Coe, ___ App.D.C. ___, 109 F.2d 449, 451.
Affirmed.
STEPHENS, Associate Justice, concurs in the result.