In re Ernst

Customs and Patent Appeals

In re Ernst

451 F.2d 1404, 59 C.C.P.A. 970, 172 U.S.P.Q. (BNA) 663, 1972 CCPA LEXIS 378

CourtCourt of Customs and Patent Appeals

DecidedMarch 2, 1972

DocketNo. 8599

StatusPublished

Cited by1 cases

This text of 451 F.2d 1404 (In re Ernst) 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

In re Ernst, 451 F.2d 1404, 59 C.C.P.A. 970, 172 U.S.P.Q. (BNA) 663, 1972 CCPA LEXIS 378 (ccpa 1972).

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Opinion

Pek Curiam:

Appellant’s petition for rehearing is granted only to the extent of changing the language of the original opinion dated December 30, 1971, 59 CCPA 966,451 F. 2d 1404,172 USPQ 236, by substituting the following paragraph for the one bridging pages 7 and 8 of the opinion (last paragraph, column 1, page 238 USPQ; last paragraph, column 2, page 1406 F.2d) :

At oral argument appellant alleged that claims 2, 4-5, 23, and 27-29 further distinguish over the prior art since they call for (in varying degrees of specificity) sterilizing gas mixtures, including ethylene oxide mixtures and fluorocarbon mixtures. After reviewing the record on appeal, we cannot find any indication [971]*971that appellant argued before the board that there was any patentable significance to that feature, nor was such an argument presented in appellant’s brief. As we said in In re Touvay, 58 CCPA 809, 811, 435 F. 2d 1344, 168 USPQ 357, 359 (1971), “Ordinarily we do not consider arguments directed to the significance of particular limitation at this late stage unless they were raised below.” We see no reason to deviate from'that rule here.

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Pek Curiam:

Appellant’s petition for rehearing is granted only to the extent of changing the language of the original opinion dated December 30, 1971, 59 CCPA 966,451 F. 2d 1404,172 USPQ 236, by substituting the following paragraph for the one bridging pages 7 and 8 of the opinion (last paragraph, column 1, page 238 USPQ; last paragraph, column 2, page 1406 F.2d) :

At oral argument appellant alleged that claims 2, 4-5, 23, and 27-29 further distinguish over the prior art since they call for (in varying degrees of specificity) sterilizing gas mixtures, including ethylene oxide mixtures and fluorocarbon mixtures. After reviewing the record on appeal, we cannot find any indication [971]*971that appellant argued before the board that there was any patentable significance to that feature, nor was such an argument presented in appellant’s brief. As we said in In re Touvay, 58 CCPA 809, 811, 435 F. 2d 1344, 168 USPQ 357, 359 (1971), “Ordinarily we do not consider arguments directed to the significance of particular limitation at this late stage unless they were raised below.” We see no reason to deviate from'that rule here.

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Bluebook (online)

451 F.2d 1404, 59 C.C.P.A. 970, 172 U.S.P.Q. (BNA) 663, 1972 CCPA LEXIS 378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ernst-ccpa-1972.

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