to determine ex parte whether the mark sought to be registered was merely descriptive and, if so, to refuse registration thereof. [2] An applicant's mark which nowise resembles a registered or known trade-mark owned and in use by another and appropriated to merchandise of the same descriptive properties shall not be registered under the terms of the Trade-Mark Act of 1905 when the applicant's mark consists merely in words or devices which are descriptive of the character or quality of the goods with which the mark is used. Beckwith v. Commissioner of Patents, 252 U. S. 538, 545, 546. The Court of Customs and Patent Appeals has held that there is no prejudicial error on the part of the Commissioner of Patents in rejecting an application for the registration of a trade-mark on a cited registration when the applicant is clearly not entitled to the registration applied for regardless of the registration cited. In re The Paris Medicine Co., 24 C. C. P. A. (Patents) 854, 87 F. (2d) 484, 32 USPQ 189. [3] Moreover, the Commissioner of Patents can not be compelled to register a trade-mark properly rejected by him on the ground that the mark consisted merely of words descriptive of the goods with which it was used. Bronson Co. v. Duell, 17 App. D. C. 471. The decision of the commissioner in such a case is not controlling, however, in the face of a judgment by a court of competent jurisdiction that the involved term is not descriptive within the meaning of the statute. Plough Inc. v. Intercity Oil Co., 26 F. Supp. 978. [4] Appellant in the instant case did not exercise the right to submit proofs in support of numerous statements, contained in its brief pertaining to the steel die industry, namely, the expensive character of the merchandise, the methods and quantities in which it is bought and sold, by whom, etc. The court has grave doubt that it may take judicial notice of facts within the special knowledge of those engaged in a particular art, not presumably a matter of common knowledge to all. Bray et al. v. Tears, 26 C. C. P. A. (Patents) 1103, 1108, 102 F. (2d) 877, 881, 41 USPQ 321, 325. Upon the record presented there appears to be no manifest error in the conclusions of the Commissioner of Patents herebefore described and, for the reasons stated, his decision should be and is affirmed. PATENTS 185 F. (2d) 686; 88 USPQ 93 IN RE ARNOLD (No. 5721) 1. PATENTABILITY-SUBJECT MATTER FOR PATENT MONOPOLY-THEORY OR LAW OF NATURE Applicant has not invented any new art or improvement embodying his discovery of a scientific or natural principle; rather he has used well known procedure for bonding by means of high frequency field and merely selected particular frequency to be used in that procedure which scientific principle he discovered indicates to be appropriate; that is not invention. United States Court of Customs and Patent Appeals, December 5, 1950 Appeal from Patent Office, Serial No. 501,707 [Affirmed.] Curtis, Morris & Safford (Truman S. Safford and J. Harold Kilcoyne of counsel) for appellant. E. L. Reynolds (H. S. Miller of counsel) for the Commissioner of Patents. [Oral argument November 6, 1950, by Mr. Arnold, pro se, and Mr. Miller] Before GARRETT, Chief Judge, and JACKSON, O'CONNELL, JOHNSON, and WORLEY, Associate Judges JOHNSON, Judge, delivered the opinion of the court: The appellant filed an application in the United States Patent Office for letters patent covering a method of treating certain materials by means of an alternating electrostatic field so as to fuse and bond the surface of the materials through the selective agitation of molecules at the surface, as distinguished from previously known methods of accomplishing by induction or dielectric heating similar results. The application was examined in the Patent Office as required by law, and the claims presented in the application were rejected as being unpatentable over certain patents cited as references. Preliminary to taking an appeal from the examiner's rejection to the Board of Appeals of the Patent Office, the applicant presented several amendments for the purpose of placing his claims in better form for appeal. Newly presented claims 39, 40, 44, and 45 were held to be allowable, and the appeal to the Board of Appeals was from the final rejection of claims 34 to 38, 41, 42, 43, 46, and 47. The Board of Appeals affirmed the rejection of the claims on the ground that they are unpatentable over the following United States patents: Pitman, 2,087,480, July 20, 1937. The patent applicant twice petitioned for reconsideration by the board of its decision. Unavailing, he brings the case before us on appeal. R. S. 4911, 35 USC 59a. Appellant has consistently contended both within the Patent Office and here that the examiner and later the Board of Appeals failed to understand his invention and consequently misapplied the disclosures of the reference patents to his claims. The applicant appeared pro se at the oral argument here to explain the technical substance of his method, as he stated, because of the misunderstanding which he believes has occasioned the rejection in the Patent Office of the claims at bar. Appellant's method relates to subjecting material to a high frequency alternating electrostatic field, and particularly to applying the energy of the field to selective portions or locations in the material to accomplish a variety of useful results, including welding or bonding and fusion. The use of high frequency alternating electrostatic fields to heat bodies as in welding or bonding operations is not new with appellant, but by his method of selective application of the energy of the field, he contends that he can induce in the material being treated "phenomena similar to those which occur at higher temperatures while the actual temperature of the material remains below that at which they ordinarily occur." It appears that when a polar substance is subjected to an alternating field, the field exerts a moment of force upon individual molecules comprising the body. If the molecules are thought of as having positive and negative charges separated in space along the molecule, it will be seen that the electrostatic field will tend to attract the positive charge toward one electrode and the negative charge toward the other electrode. As the polarity of the alternating field is reversed, the pull on the molecules is also reversed. As the frequency of the alternating field is increased, the molecules have less time after each reversal of polarity to align themselves to the reversed polarity of the field, with the result that the motion of the molecules will begin to decrease as the frequency is further increased. As that phenomenon occurs, an accelerating change in the dielectric constant of the material takes place. The range within the frequency of the alternating electrostatic field at which those phenomena occur is the anomalous dispersion range of the material. At the center frequency of that range, the average of the motions of the molecules induced by the alternating field is at a maximum. In this range maximum energy absorption is said to occur. Appellant's discovery is not the principle of the anomalous dispersion range. He determines by known methods the anomalous dispersion range "for the particular material and for the particular conditions of treatment." As the field corresponding to the center of that range is first applied, appellant states, "the temperature of the substance is not abruptly increased as might be expected," and "since the relaxation time may be different for each molecule and for given molecules in each environment," he has found "that by the use of this mechanism" he can "selectively induce one substance within a body or material to behave as though it were at a higher temperature than the rest of the body." Thus, appellant states, he "may cause the surface of a body to fuse without fusing the interior." The drawings of the application illustrate an apparatus for practicing appellant's method as it relates to bonding or welding together two sheets of thermoplastic material. "When a homogeneous material is used in this way," the specification states, "it is found that the molecules at the surface respond more readily to the alternating field, and therefore will have their range of anomalous dispersion at a somewhat higher frequency than the molecules in the interior of the body. Advantageously, therefore, the higher frequency is selected to give a maximum effect at the surface." The specification then states that "This effect may be further increased by the use of a surface coating to which the frequency is attuned." That coating may be a plasticizer with an anomalous dispersion range different from that of the bodies being bonded. There the frequency is one in the anomalous dispersion range of the plasticizer or it may be a complex frequency including one in the anomalous dispersion range of the plastic material as well as one in the range of the plasticizer. Where a plasticizer is used, thermoplastic sheets are overlapped and passed between the pressure roller electrodes of an apparatus described in the application. The material is exposed to the selected high frequency field, and as the material passes between the rollers, "there is an instantaneous fusing of the surface" which under the pressure of the rollers produces a bond, the material coming out from between the electrode rollers "without overheating and apparently at a temperature below the normal softening point of the thermoplastic." The specification states that the same procedure may be followed without the use of the plasticizer coating, but that "the process is more sensitive to exact frequency control since the frequency to which the surface molecules respond is closer to that at which the interior molecules respond so that uncontrolled variations in the circuit may result in a softening of the entire sheet with a consequent squeezing out of material from between the rolls." Claim 34 is illustrative of the subject matter on appeal, and reads as follows: 34. The method of welding adjoining bodies at least one of which embodies in its substance molecular units responsive to alternating electrostatic fields, those of said units at the surface of said body and in the area to be welded having an anomalous dispersion range the center frequency of which is different from the center frequency of the corresponding anomalous dispersion range of similar units within the interior of said body, which comprises exposing said body, while the surfaces of said bodies are substantially in contact, to an alternating electrostatic field of frequency at a center frequency of the range of anomalous dispersion for said units at the surface of said body under the conditions of treatment, said welding being completed while the temperatures of said bodies remain below their normal softening temperatures. * * * ** * The patent to Pitman relates to a method for cementing shoe parts, such as a leather sole and upper, by activating a cement applied to the surfaces to be bonded with heat generated "within and/or adjacent" the cement film by high frequency alternating electrical current. Speaking of the frequency of current required, Pitman states that it may vary within wide limits, mentions a specific frequency, and concludes: "It has been found that with each cement an optimum change from electrical energy to heat energy is obtainable the optimum frequency will readily be found by testing a few different values in the above range; * With this statement there should be compared applicant's disclosure of a general procedure for locating the anomalous dispersion range for the particular material to be tested: "Wherever a substantial difference appears between the dielectric constant for the material at one frequency and the dielectric constant at the next frequency chosen at least a part of a range of anomalous dispersion lies between the frequencies used in these two tests. By making additional tests more closely spaced within this area * there will be accurately located, appellant states, the desired central frequency of the anomalous dispersion range. The Kassner patent relates to a process for altering the energy content of dipolar substances by subjecting them to rapidly oscillating electromagnetic fields. Kassner states that his process depends on characteristic periods and frequencies of dipolar substances such as (1) the relaxation time of the orientation of the dipoles when exposed to a varying electric field; and (2) the period of natural oscillation relative to each other of the charges constituting a dipole. He teaches that since dipolar molecules are carriers of electric charges they oscillate in the presence of an alternating electrical field and absorb energy from the field. The excitation is especially strong and energy absorption especially great under conditions of resonance. Plotting frequency and energy absorption graphically, he points out that the depicted region of sudden change is the anomalous dispersion region. Kassner teaches that "dipolar substances * * behave in a thoroughly new and unforseen manner when they are subjected to the action of an electromagnetic radiation field which oscillates mainly or wholly in at least one of the frequencies which is the same as one of ** |
