
    70 USPQ 417; 156 F. (2d) 245
    In re Swain et al.
    (No. 5177)
    United States Court of Customs and Patent Appeals,
    June 27, 1946
    
      James Edwin Archer for appellants.
    
      W. W. Cochran for the Commissioner of Patents.
    [Oral argument May 7, 1946, by Mr. Archer and Mr. Cochran]
    Before Gaebeut, Presiding Judge, and Bland, Hatfield, Jackson, and O’Connell, Associate Judges
   O’Connell, Judge,

delivered the opinion of the court:

This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming the action of the Primary Examiner in rejecting claims 1, 2, 3, 4, and 5, being all the claims in appellants’ application for a patent on coating compositions containing ethyl cellulose. Claims 1, 2, and 5 were rejected a.s unpatentable over the prior art of record and claims 3 and 4 were rejected “as not readable on the elected species since there is no allowable generic claim.”

Claim 1, which is generic, is illustrative of the subject matter and reads—

1. A coating composition containing ethyl cellulose and a resin selected from the group consisting of melamine-formaldehyde resins which have been reacted with an aliphatic alcohol containing from 4 to 7 carbon atoms wherein the molal ratio of formaldehyde to melamine is at least about 5:1 and melamine-formaldehyde resins alkylated with an octyl alcohol wherein the molal ratio of formaldehyde to melamine is at least about 4:1, the proportion of ethyl cellulose and melamine resin being in a ratio between about 3:1 and about 1: 3.

■ Claim 1 differs .from claims 2 and 5 in that claim 2 defines a coating-composition reacted with n-butyl alcohol and claim 5 recites “the molal ratio of formaldehyde to. melamine is between about 4:1 and about 6:1.”

This appeal and companion appeal, No. 5116, were discussed together in appellants’ brief inasmuch as the references relied upon by •the tribunals of the Patent Office were identical in both cases, the grounds of rejection in each case were the same, and both cases relate to coating compositions containing ethyl cellulose and compatible portions of certain melamine-formaldehyde resins. It is deemed unnecessary therefore to repeat and discuss the cited references together with the validity of the grounds of rejection.

The claimed range of proportions herein having been determined by routine experimentation and no critical result having been established by a proper showing, the decision of the Board of Appeals in its rejection of all the claims herein is accordingly affirmed.  