Ciric v. Flanigen

511 F.2d 1182, 185 U.S.P.Q. (BNA) 103, 1975 CCPA LEXIS 171
CourtCourt of Customs and Patent Appeals
DecidedMarch 20, 1975
DocketPatent Appeal No. 74-604
StatusPublished
Cited by5 cases

This text of 511 F.2d 1182 (Ciric v. Flanigen) is published on Counsel Stack Legal Research, covering Court of Customs and Patent Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ciric v. Flanigen, 511 F.2d 1182, 185 U.S.P.Q. (BNA) 103, 1975 CCPA LEXIS 171 (ccpa 1975).

Opinion

MILLER, Judge.

This is an appeal by senior party-appellant from the decision of the Board of Patent Interferences 1 awarding priority to junior party-appellees on the basis of their actual reduction to practice prior to appellant’s earliest filing date. The only element of the actual reduction to practice challenged by appellant is utility. We affirm.

The interference involves novel synthetic crystalline zeolites described in a [1183]*1183count2 which does not specify any particular use. Consideration of the sole issue before us involves the properties of the known class of crystalline zeolites and the relationship between the new zeolites of the count and that known class. Appellant’s specification states:

Zeolitic materials, both natural and synthetic, have been demonstrated in the past to have catalytic capabilities for various types of hydrocarbon conversion reactions, especially catalytic cracking. Certain of these zeolitic materials comprise ordered, porous crystalline aluminosilicates having a definite crystalline structure, as determined by X-ray diffraction, within which there are a large number of small cavities which are interconnected by a series of still smaller channels or pores. These cavities and pores are precisely uniform in size within a specific zeolitic material. Since the dimensions of these pores are such as to accept for adsorption molecules of certain dimensions while rejecting those of larger dimensions, these materials have come to be known as “molecular sieves,” and are utilized in a variety of ways to take advantage of the adsorptive properties of these compositions.
These molecular sieves include a wide variety of positive ion-containing crystalline aluminosilicates, both natural and synthetic. . . . All can generally be described as having a rigid 3-dimensional network of SÍO4 and AIO4 in which the tetrahedra are cross-linked by the sharing of oxygen atoms whereby the ratio of the total aluminum and silicon atoms to oxygen atoms is 1:2. [Emphasis added.]

The specification also indicates that the new zeolites in sodium form are useful as adsorbents for gases and liquids, such as water and cyclohexane.

In a similar fashion, appellees’ specification states:

The openings [in the channels of the zeolite crystal lattice] limit the size and shape of the molecules that can be adsorbed. A separation of mixtures of molecules based upon molecular dimensions, wherein certain molecules are adsorbed by the zeolite while others are refused, is therefore possible. It is this characteristic property of many crystalline zeolites that has led to their designation as “molecular sieves.” .
In addition to the unique adsorption properties of zeolitic molecular sieves, certain of these materials, particularly when chemically modified, are excellent catalysts .
Over the past few years about 30 species of synthetic crystalline zeolites have been prepared. . . . The existence of a number of zeolites having similar but distinguishable properties advantageously permits the selection of a particular member having optimum properties for a particular use.
The present invention has as its prime object the provision of a novel synthetic crystalline zeolite of the molecular sieve type. Another object is to provide a novel synthetic crystalline zeolite having useful adsorption properties.

The rigid framework of crystalline zeolites accounts for their ability to selectively adsorb various substances based [1184]*1184on molecular dimensions and to undergo ion exchange. Thus, crystalline zeolites are known for their adsorptive and ion exchange properties.3 Appellant agrees that those properties are used to distinguish a crystalline zeolite, but argues that they should not be employed for the ipso facto finding of utility. However, appellant does admit that crystalline zeolites have a wide variety of utilities. Furthermore, knowledge of the properties of crystalline zeolites and examples of the wide varieties of utility are demonstrated in the opinions of this court4 and in the following definition from The Condensed Chemical Dictionary, 759 — 60 (6th ed. 1961):

MOLECULAR SIEVES. Zeolites or similar materials whose atoms are arranged in a crystal lattice in such a way that there are a large number of small cavities interconnected by smaller openings or pores of precisely uniform size. Normally these cavities contain water molecules, but upon heating, this water is driven off without any change in the remaining crystal lattice. The network of cavities and pores may occupy 50% of the total volume of the crystals.
Molecular sieves have a strong tendency to readsorb water. In the absence of water they will adsorb other molecules that are small enough to pass through the pores. These small molecules may thus be separated from a mixture with larger molecules.
Uses: Drying gases such as air, hydrogen, natural gas, refinery gas, ethylene; drying liquids such as benzene, alcohols, hydrocarbons, fluorocarbons; separation of ethylene from carbon dioxide, carbon dioxide from annealing gas, hydrogen sulfide from natural gas; removal of normal paraffins from light naphthas. Also as a carrier for volatile, toxic, odoriferous, or reactive compounds, which can then be released by heat or displacement at the desired time and place. Materials that have been so carried include organic and metalloorganic compounds, halogen elements, acid gases, water, perfume, catalysts, pesticides, fumigants, ripening agents, radioactive isotopes, blowing agents, antioxidants in rubbers and plastics.

Appellant does not challenge the board’s findings that appellees prepared two samples within the terms of the count; that the composition of the samples was confirmed by chemical analysis; or that the crystalline structure was confirmed by X-ray diffraction. Nor has appellant challenged the tests on one sample showing ion exchange with calcium, potassium, and ammonium ions or the tests on another sample demonstrating a reversible gain and loss of water. After correctly stating the well-established rule that, where an interference count does not specify any particular use, evidence establishing a substantial utility for any purpose is sufficient to prove reduction to practice, the board declined to take administrative notice of the capability of crystalline zeolites to be employed as water softeners because it did not regard that to be a matter of common knowledge. However, the board did take administrative notice of five patents, not previously of record or submitted by either party, which disclosed the use of crystalline zeolites as water softeners or as ion exchangers. In view of the noticed patents, the board held that appellees had established a practical utility for the zeolites of the count — namely as an ion exchanger, one of whose uses is the softening of natural water.

[1185]*1185OPINION

As noted above, when a count does not recite any particular utility, evidence establishing a substantial utility for any purpose is sufficient to prove reduction to practice. Rey-Bellet v. Engelhardt, 493 F.2d 1380 (CCPA 1974); Engelhardt v.

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511 F.2d 1182, 185 U.S.P.Q. (BNA) 103, 1975 CCPA LEXIS 171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ciric-v-flanigen-ccpa-1975.