
    57 F. (2d) 384
    In re Walter S. Eppley
    (No. 2985)
    
      United States Court of Customs and Patent Appeals,
    April 4, 1932
    
      WUlimi, J. Jacobi and Herbert J. Jacobi for appellant.
    
      T. A. Hostetler (Howard 8. Miller of counsel) for the Commissioner of Patents.
    [Oral argument Marcli 10, 1932, by Mr. Miller;
    Before Geaham, Presiding Judge, and Bland, Hateield, Gaebett, and Lenboot, Associate Judges
   GRAHAM, Presiding Judge,

delivered the opinion of the court:

The appellant filed Ms application in the United States Patent Office on July J, 1926, for a patent upon certain improvements in a steam power plant. As a result of the action of the tribunals of that office, claim No. 10 of that application was rejected and is now here on appeal. Said .claim is as follows:

10. The method of generating and utilizing an expensive vapor which consists in heating a noninfiammable, nonvolatile fluid by circulating the same through a heating zone, passing the heated fluid through a heat exchanging zone, simultaneously circulating a vaporizing liquid through the heat exchanger zone whereby heat is transferred from the fluid' to the liquid and the liquid is vaporized, utilizing the vapor and condensing the used vapor, heating the condensation and returning the heated condensation to the heat exchanging zone.

The claim was rejected on reference to Emmet, 1167158, of January 4, 1916.

Appellant’s claimed invention consists of a method for heating a fluid only vaporizable at very high temperatures, circulating this heated fluid through a heat exchanging chamber where it comes in conductive contact with a more easily vaporizable substance, utilizing the vapor thus created to operate a turbine and to heat another more volatile liquid, and chambers for condensing the used vapors produced by the successive vaporizations and means to conduct the successive condensates, preheated, back to the respective heat exchanging zones.

The rejected claim reads directly upon the reference Emmet with the exception of one element which will later be referred to. Emmet shows a device which heats a fluid volatilizable only at very high temperatures, circulates this heated fluid through a heat exchanging chamber, circulates an easily volatilizable liquid through this heat exchanging chamber, where it becomes vaporized, operates a turbine, and returns the preheated condensate. It is true, Emmet adds certain mechanisms to his combination and performs additional functions, as, for example, the operation of a turbine in the-heat exchanging zone by the circulating primary heating element. The omission of this element, however, with its corresponding function, does not affect the anticipatory character of this reference. In re Collins, 18 C. C. P. A. (Patents) 951, 46 F. (2d) 582; In re Trester, 17 C. C. P. A. (Patents) 642, 36 F. (2d) 133.

The element above suggested, in which there seems to be a difference between appellant’s claim and those of Emmet, is this: Appellant claims his primary heating element is a “ noninflammable., nonvolatile fluid.” Emmet discloses and claims a volatilizable fluid, namely, mercury. Appellant’s amended specification recites that he proposes to use phenylamine as his primary nonvolatile heating fluid. Both tribunals of the Patent Office state that this liquid has a boiling point of approximately 184° C., while the mercury used by Emmet has a boiling point of approximately 357° C. This fact is not controverted by the appellant and, therefore, will be accepted by the court as conceded.

It follows that while appellant’s refused claim reads “ a nonvolatile fluid,” his disclosure is of a liquid which is no more nonvolatile than that used in the Emmet patent. In fact, it is much less so. The appellant has, apparently, so limited his application and claim as to call for the use of phenylamine as a primary heating fluid, and in this respect, we believe, his claim is anticipated by the reference patent to Emmet.

The decision of the Board of Appeals is affirmed.  