# Application of Francis J. Hassler

> Court of Customs and Patent Appeals · July 1, 1965 · 347 F.2d 911

URL: https://www.frixlaw.com/law-library/cases/9450874

## Case

- **Full name:** Application of Francis J. HASSLER
- **Court:** Court of Customs and Patent Appeals
- **Decided:** July 1, 1965
- **Citations:** 347 F.2d 911; 52 C.C.P.A. 1546
- **Precedential status:** Published
- **Opinion:** Concurrence by Smith
- **Judges:** Rich, Martin, Smith, Almond
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9450874

## Opinion text

SMITH, Judge
(concurring).
In my opinion, the publication in the Raleigh News and Observer on November 10, 1958, more than one year prior to appellant’s filing date, is an enabling disclosure which so described the invention here claimed that one of ordinary skill in the tobacco flue-curing art can be said to have had possession of the invention at that time. The additional references cited are at best evidence of what one of ordinary skill in this art would be expected to know.
In Cohn v. United States Corset Co., 93 U.S. 366, 377 , 23 L.Ed. 907 (1876), the Court stated the guiding principle which I think is applicable here:
* * * the evidence shows that the Johnson specification, in connection with the known state of the art at the time when it was filed and published, was sufficient to enable one skilled in the art of corset-making and in the use of the jacquard to make the patented corset. * * * [Emphasis added.]
See also In re Sheppard, 339 F.2d 238 , 52 CCPA 859; In re LeGrice, 301 F.2d 929 , 49 CCPA 1124; In re Wenzel, 88 F.2d 501 , 24 CCPA 1050.
Appellant urges that since the publication describes his own experimental work, it is clear that his date of invention is earlier than the publication date. While this undoubtedly is true, no exceptions are provided under § 102(b) when, as here, the invention was described in the printed publication.
Appellant urges that the publication should be “strictly construed” to the end that since the invention was in an experimental stage on the date of publication, appellant is entitled to the “hospitality” accorded by law to encourage experimentation and further development of an invention before an application is filed thereon. Congress has seen fit to fix the time period for such “hospitality” at one year from the date of a publication describing the invention and we can do *920 nothing about it except to review and compare the invention claimed and the invention described in the publication.
Appellant urges that when this is done,
There are two fundamental reasons why the News and Observer article does not meet such strict tests. First, the article does not clearly disclose all of the structural limitations set forth in the claims. Second, the article is completely lacking in any disclosure of how a complete structure could be used to obtain the results alluded to. So long as the article includes these deficiencies the invention has not been placed in the possession of the public, nor would one skilled in the art be enabled to make and use the structure or to practice the invention.
I have reviewed the News and Observer publication in view of appellant’s position and have concluded that it does convey to one of ordinary skill in the tobacco flue-curing art a sufficient disclosure of the invention to permit it to be put into practical operation. Hence, it seems to me that it meets the requirements of a publication spelled out in In re LeGrice, supra, and the cases therein discussed.
I do not, therefore, regard this case as involving a rejection under 35 U.S.C. § 103 and I agree fully with the statement in appellant’s brief that:
* * * It can be stated unequivocally that if the present claims are held to be unpatentable, it is not because Dr. Hassler failed to make an invention, but solely because Dr. Hassler was not sufficiently diligent in filing his application.
To the extent the resolution of the issue here requires a determination of patentability under section 103, • as the majority seems to indicate, I would reverse for the reasons more, fully elaborated in my dissenting opinion in In re Foster, 343 F.2d 980 , 52 CCPA -. However, it does not seem to me that this issue is here presented since the publication relied upon “describes” the claimed invention within the meaning of section 102(b) and the many decisions which have interpreted it. I therefore concur in the result reached but do so solely on this basis.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9450874. Public record. Not legal advice.