text:
    Application of David M. GOODMAN.
    Patent Appeal No. 8875.
    United States Court of Customs and Patent Appeals.
    May 10, 1973.
    David M. Goodman, pro se.
    S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents; R. V. Lupo, Eugene F. Desmond, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, and RICH, ALMOND, BALDWIN, and LANE, Judges.
   MARKEY, Chief Judge.

This is an appeal from the decision of the Board of Appeals affirming the examiner’s rejection for obviousness under 35 U.S.C. § 103 of claims 12, 39, 42-48, 51-54, 56-61, and 64-70 of appellant’s application serial No. 345,197, filed February 17, 1964, entitled “High-Sensitivity Beam-Index and Heaterless Cathode Ray Tubes.” We affirm as to some claims and reverse as to others.

The Invention

The invention relates to an index signal detecting means for color cathode ray tubes of the type wherein a single electron beam scans strips of different col- or-producing phosphors on the target screen. The detected signals are used to “index” or synchronize the sequential switching action necessary in such a tube to obtain an image having its colors in registration.

Three major embodiments are disclosed. These differ mainly in the positioning and shape of an optical fiber detector (or receiver) that is employed and are grouped generally as follows by appellant :

I. One embodiment relates to a color television tube with specially shaped, internally and externally disposed light pipe members. An index-type target screen on the tube faceplate includes repeating groups of red, green, and blue phosphor strips and interspersed indexing strips. Electromagnetic radiation emanates from the indexing strips and spreads out into the interior of the tube as a beam travels across the screen. A light pipe of glass which is either itself scintillating (emitting a flash of light in response to an ionizing particle or photon) or else has its end coated with a scintillating material is disposed in the neck of the tube to pick up the radiation and convert it to optical signals. The latter pass to the end of the tube and are picked up by a second, external light pipe surrounding conventional electrical pin connectors and conveyed to an indexing device. In one modification, the faceplate glass has the same index of refraction for the signal as the indexing strips. An electron gun bombards all of the strips. The index signals are “light-piped” within the faceplate, and through the tube envelope including the neck section that surrounds the pin connectors. An external light pipe with an end surrounding the pin connectors transmits the signals to beam indexing means.

II. A second embodiment involves forming the index strips of portions of light pipes contiguous with the target screen. The contiguous portions are coated with an electron sensitive index phosphor (scintillator) or may be made from a scintillating glass. Signals in the indexing portions are conveyed by external portions of the pipes to an indexing means.

III. A third embodiment relates to an index signal detector of a scintillating material having a decay time constant “not much greater than four nanoseconds.”

For completeness, all of the independent claims 12, 39, 42, 44, 47, 51, and 56 are set out as representative:

12. A cathode ray tube having an envelope with an electron gun section for providing a scannable electron beam and a target screen comprising electron-sensitive scintillating optical fibers disposed along, and not perpendicular to, the target screen on the side thereof which is to be impinged upon by the electron beam.
39. In combination: (1) a line-screen color cathode ray tube of the beam-index variety having a target screen which furnishes index signals indicative of the position thereon of the impinging cathode rays, with (2) index-signal deriving means comprising a scintillator which generates electromagnetic radiation in the optical frequency range as a consequence of excitation by the index signals, said scintillator having a decay time constant not much greater than four nanoseconds.
42. In combination: a cathode ray tube having a target screen within an envelope containing a cylindrical-like neck section having a vacuum tight end section through which a plurality of electrical pin connectors, are hermetically sealed, and an externally disposed hollow cylindrical-like light pipe means positioned with one end proximate said end section and surrounding the pin connectors, thereby to pick up optical radiation transmitted through the envelope of the tube from said target screen.
44. A color cathode ray tube of the beam index variety comprising an envelope containing a target screen and an electron gun, said screen containing different color generating elements together with index signal generating elements, in combination with means for transmitting optical signals representative of the index signals, said means comprising a hollow cylindrical light pipe positioned to surround the electron gun and also positioned adjacent to and concentric with the interior surface of the envelope of the tube.
47. A cathode ray tube having an envelope with an electron gun section for providing a scannable electron beam and a target screen including optical fibers disposed along, and not perpendicular to, the target screen wherein a glass-like electron-sensitive scintillator material is adhered to the optical fibers on the side thereof which is to be impinged upon by the electron beam.
51. In a beam index apparatus comprising a scannable beam of energy, a target screen, and a control system responsive to the position of the beam on the target screen for controlling the excitation of the target screen, the improvement of the target screen comprising: a plurality of light pipe elements located substantially parallel to the target screen on the side thereof facing the scanning beam of energy, whereby optical index signals generated at the target screen as a result of excitation by the scanning beam are transmitted through the light pipes to exit terminals where they are used to synchronize the control system.
56. A beam index multi-color display device comprising: means for developing a scannable beam of energy; a target screen adapted to be impinged upon by the beam of energy; means for scanning the beam across the target screen; means associated with the target screen for generating optical index signals which indicate the position on the target screen of the beam of energy; means responsive to the optical index signals for controlling the beam of energy thereby to synchronize the energization of the target screen; including light pipe means positioned with respect to the target screen so that the optical index signals generated as a result of excitation at different regions of the target screen are transmitted through the light pipe means in a direction substantially parallel to the target screen to a peripheral region thereof.

For purposes of this appeal, it is unnecessary to discuss the additional recitations in the dependent claims except for claim 66. The feature of that claim significant here is that it adds to claim 56 a recitation that the light pipe means comprises “a plurality of elongated light pipes disposed on the interior surface of the faceplate.”

The Prior Art

The following patents were cited:

Bradley et aI. 2,749,449 June 5, 1956

Goodman 2,915,659 Dec. 1, 1959

Bradley 3,027,219 March 27, 1962

Knocklein 3,198,881 Aug. 3, 1965

(filed 3-19-62)

Bradley et al. discloses a color television tube with vertical indexing strips separating recurring triplets of red, green, and blue color phosphors on the inside surface of the screen. The indexing strips scintillate in response to electron bombardment to produce signals. The inside of the tube is coated with a material that reflects the signals through a lens in the tube envelope to a sensor serving as part of an indexing means.

Goodman ’659 relates to a cathode ray tube having spaced radiation-emitting index rings on its screen interior. An elongated light pipe which may be hollow is disposed in the neck portion of the tube, extending from a point where the conical portion of the tube envelope begins to the base of the tube adjacent the pin connections. The end of the light pipe detects signals emanating from the rings as the electron beam sweeps across them. The signals are transmitted through the pipe to means disposed outside the tube for indexing.

Bradley discloses parallel scintillating filaments or light pipes disposed over the outside of the faceplate. A phosphor screen is deposited on the inside of the faceplate. A “collimating structure” is disposed between the light pipes and the faceplate. The “collimating structure” includes vertical baffles that insure that any excited spot on the screen can illuminate only one or two adjacent light pipes. The light pipes scintillate in response to radiation from the screen and transmit signals to a film for recording.

Knoeklein discloses a film scanning transmission system using fiber optics in a cathode ray tube. The tube includes a plurality of light pipes with their inner ends arranged in a circle to be scanned by the electron beam of the tube. From there the pipes flare out so that their outer ends form a straight line. A recess etched in the individual inner ends of the light pipes is filled with a phosphor “scintillator” material. The intensity of the electron beam can be varied in response to a video signal so as to produce an optical image on the linearly disposed ends of the pipes and photographic film may be exposed to that image to record the video signal.

OPINION

Appellant argues that his own patent, Goodman ’659, is an “improper reference” in the apparent belief that he could, by amending the present application to refer to two of his other patents, negate the use of Goodman ’659 as prior art.

However, appellant has not pointed out how the subject matter of the appealed claims is continuously supported throughout the chain which includes those two patents and the present application. Nor is such support apparent to us. Under these circumstances, amending the present application to include “a specific reference to the earlier filed application[s]” (35 U.S.C. § 120) would not entitle appellant to an effective filing date antedating the Goodman ’659 reference.

In rejecting claim 39, the examiner held it obvious to use a scintillating material as disclosed by Bradley on the light pipe of Goodman ’659 to convert the index signals therein to visible light. The board held that a person skilled in the art would have found Bradley to suggest both the change in frequency of the signals and a manner of making the change. We agree. Moreover, it is apparent that rapid decay of signals is essential for clear indications of the instants at which the beam is in the various index positions. Therefore, we agree with the solicitor that the four nanoseconds limitation in claim 39 “amounts to nothing more than the obvious selection of a parameter to fit the intended use” and will affirm the rejection.

Claim 12 was held unpatentable over Bradley in a prior board decision in the prosecution of this application and in the decision on appeal. Claims 47 and 48 were held unpatentable on the same grounds as claim 12 in the decision on appeal.

The rejection of claim 12 was grounded in the position that it would be obvious to locate the light pipes of Bradley on the inside of the tube instead of the outside. However, Bradley employs the “collimating structure” on the faceplate exterior to focus light passing through the faceplate from various points on the phosphor screen onto corresponding limited areas of the light pipe assembly. Bradley makes no suggestion that the light pipes or “optical fibers” be disposed on the inside, that is, “the side thereof to be impinged upon by the electron beam.” Further, no reason for so modifying the location of the pipes of Bradley and no indication of how such a change might be made is supplied by either the examiner or the board. Claims 47 and 48 include the same limitation. Therefore the rejection of claims 12, 47 and 48 must be reversed.

Claims 51-54 and 66-70 also require that plural light pipes be disposed on the interior and parallel to the screen. Bradley and Bradley et al. were applied to these claims, the latter as an alternative to Goodman ’659.

We agree that Bradley’s disclosure of parallel light pipes outside its tube would have made it obvious to modify Bradley et al. or Goodman ’659 by providing light pipes outside their tubes. However, we find no suggestion in any of these references that such parallel light pipes be provided inside the tube. Knocklein was further relied on as to claims 66-70, but the terminals of its bundle of light pipes are, in effect, the screen. On the record here, we cannot see that Knocklein suggests that the light pipes of Bradley be disposed on the interior of the screens of Bradley et al. or Goodman ’659. Accordingly, the rejection of claims 51-54 and 66-70 must be reversed.

The examiner, applying the same art as that applied to claims 51-54, correctly observed as to claims 56-61, 64 and 65:

The claims set no restrictions on which side of the target screen the light pipes are to be positioned, and they do not require the light pipes to be attached to the target screen.

We have determined above that the cited combination of prior art patents would have made obvious a structure employing light pipes outside the tube. Appellant has pointed to no other limitations as defining over the prior art. Thus, we will sustain the rejection of claims 56-61, 64 and 65.

Claims 42-46 were rejected as obvious over Goodman ’659 with Knocklein and Bradley et al. further applied to claims 44-46. The board regarded these claims as directed to obvious modifications of the light pipes of Goodman ’659. The essence of appellant’s position seems to be, as set out in his brief before the board, that “there is no good reason expressed [in Goodman ’659] why this light pipe should be hollow except for the present teaching where the hollow cylinder also surrounds the feed-through pins.” However, the reference expressly states that its pipe, conveying the index signals, illustrated as a rod, “may also' be in the form of a hollow cylindrical pipe.” We agree that modifications of the light pipes of Goodman ’659 to the shape of a hollow pipe would have been obvious particularly in the absence of any evidence showing an unobvious result. Accordingly, we affirm the rejection of claims 42-46.

Appellant argues that “prior art” of his own and of certain others is evidence to support patentability. However, he does not point out any way in which that prior art establishes non-obviousness. Appellant further argues that the issuance of his foreign patents on the instant disclosure is evidence of patentability. It has long been established that that argument has no pertinence to the determination of obviousness. See In re Larsen, 292 F.2d 531, 49 CCPA 711 (1961).

For the foregoing reasons the rejection of claims 39, 42-46, 56-61, 64 and 65 is affirmed and the rejection of claims 12, 47, 48, 51-54, and 66-70 is reversed.

Modified.

      . Patent No. 3,081,414 filed March 20, 1959, issued March 12, 1963, and Patent No. 3,567,985 filed June 2, 1966, issued March 2, 1971 which is stated to be a continuation of application serial No. 212,612 filed July 26, 1962.

      . On the earlier occasion, the instant case came before the board with some claims rejected on art and others for undue multiplicity. Although the board sustained the rejection of certain claims, it reversed the rejection of others including the rejection of undue multiplicity. The latter action brought about further prosecution before the examiner that resulted in the board decision now before us.


source: Caselaw Access Project

author: BALDWIN, Judge.

license: Public Domain

text:
    Application of William L. ELLIS.
    Patent Appeal No. 8860.
    United States Court of Customs and Patent Appeals.
    April 26, 1973.
    Francis D. Thomas, Jr., Washington, D. C., attorney of record, for appellant.
    S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents; John W. Dewhirst, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, RICH, BALDWIN, and LANE, Judges, and WATSON, Judge, United States Customs Court, sitting by designation.
   BALDWIN, Judge.

This appeal is from the decision of the Patent Office Board of Appeals, sustaining the examiner’s rejection of claims 1-5, all the claims in appellant’s application.

The Invention

The claimed invention relates to floor gratings, and can be sufficiently understood from a reading of claim 1 with reference to appellant’s Figure 3:

1. A floor grating, comprising: a plurality of main support members [12], a plurality of secondary support bars [16] supported by said members and extending in fixed parallel spaced relation therebetween,
a plurality of closely spaced wire rod members [18] secured to said secondary load bearing support bars and extended in parallel relation transversely thereacross for providing a walking surface thereover,
said secondary load bearing support bars being sufficiently deep and closely spaced to support said' wire rod members for pedestrian traffic without undue flexing therebetween,
and said wire rod members being spaced in the order of Vs inch or less apart and having an exposed upper surface area more than one-half the open spacing therebetween for providing a substantially contiguous walking surface for pedestrian traffic there-over and the passage of snow and dirt therethrough.

Claim 2 requires that the wire rod- members be tapered, to more readily pass dirt and debris. Claims 3-5 differ from claim 2 in respects unnecessary to describe in detail here.

The Rejection

The claims were rejected under 35 U. S.C. § 103 as being unpatentable over a patent to Schulz in view of a patent to Trixner. Schulz deals with structural gratings which may be used for ceilings, walls, flooring for bridges, etc. While most of Schulz’s gratings are filled with concrete in use, Schulz discloses an alternate opening grating not filled with concrete in Figure 8:

Trixner deals with non-clogging shoe scrapers. The application states:

The scraper is advantageously constructed so that the gaps cannot be clogged and the individual cleaning elements can be easily removed and replaced, which greatly facilitates cleaning after extensive use and removal of worn individual scraper elements. According to the invention this result is obtained by detachably inserting the channel-shaped rods which receive the rubber elements in corresponding slots in the flat perpendicular rods, and by providing the scraper elements, made of rubber or the like, with a cross section which is tapered from the surface downward.

One embodiment of the scraper is shown in Figure 3:

The examiner considered that it would have been obvious to closely space the wire rod mémbers of Schulz in view of the Trixner patent. The board affirmed, stating:

It is a matter of notorious knowledge that floor gratings are made with their bars sufficiently close to permit easy walking thereon, such as not to permit woman’s narrow heels to be caught therein. In our opinion, the expedient of placing the cross-bars in Fig. 8 of Schulz in close proximity to each other would have been an obvious variant even on the part of persons with less than ordinary skill in the art, particularly in view of Trixner where similar cross members 5 are spaced much closer. The precise spacing is deemed an obvious variant in degree. * * *

Opinion

Appellant contends that the two references should not be combined because they are from non-analogous arts. Appellant contends that the Patent Office classification of Schulz’s patent was in “Roads and Pavements,” that the classification of Trixner’s patent was under “Brushing, Scrubbing and General Cleaning,” and that the skilled in the art “would not expect to find grid or grating structures which are installed in floors under the art ‘Brushing, Scrubbing and General Cleaning.’ ” To this the Solicitor responds:

[A]ppellant is in error in his belief (Br-3) that Schulz is classified in the “Roads and Pavements” art. On the contrary, Schulz is classified with the “Static Structures” art (Class 52), in an area providing for structures having exposed surfaces for increasing friction or reducing wear caused by pedestrian traffic. Also of significance is the fact that the official search notes for this area of Class 52 direct the searcher to Class 15-238, where Trixner is classified, for related art. * * *

While we find the diverse Patent Office classification of the references to be some evidence of “non-analogy,” and likewise find the cross-reference in the official search notes to be some evidence of “analogy,” we consider the • similarities and differences in structure and function of the inventions disclosed in the references to carry far greater weight. Cf. In re Heldt, 433 F.2d 808, 812, 58 CCPA 701, 706-707 (1970). Here the structural similarities and the functional overlap between pedestrian gratings and shoe scrapers of type shown by Trixner are readily apparent. We conclude that, at the very least, the arts to which the Schulz and Trixner patents belong are reasonably pertinent to the art with which appellant’s invention deals. See In re Antle, 444 F.2d 1168, 1171-1172, 58 CCPA 1382, 1387 (1971).

We have carefully considered appellant’s other arguments. However, we are convinced on the record before us that it would have been obvious for one skilled in the art to arrange the wire rod members of Schulz in closer proximity, as shown by Trixner’s scraper rods, should it be desired to avoid the catching of women’s heels in pedestrian gratings. Accordingly, the decision of the board is affirmed.

Affirmed.

      . Serial No. 618,203, filed February 23, 1967.

      . U.S. Patent No. 2,031,007, issued February 18, 1936.

      . Austrian Patent No. 175,037, published May 26, 1953.


author: PER CURIAM.

text:
    DAVID CRYSTAL, INC., Appellant, v. SHARON RAY CORP., Appellee.
    Patent Appeal No. 8913.
    United States Court of Customs ■ and Patent Appeals.
    April 19, 1973.

      Ronald L. Panitch, Edward C. Gonda, Seidel, Gonda & Goldhammer, Philadelphia, Pa., attorneys of record, for appellant.
    A. Robert Theibault, Wilkinson, Mawhinney & Theibault, Washington, D. C., attorneys of record, for appellee. Raymond J. Mawhinney, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and ALMOND, Senior Judge.
   PER CURIAM.

This appeal is from the decision of the Trademark Trial and Appeal Board, abstracted at 167 USPQ 699 (1970), dismissing appellant’s oppositions to appellee’s applications to register GOLD CRYSTAL for cosmetic preparations, FIRE CRYSTAL for cosmetic preparations, and OCEAN CRYSTAL for cosmetic preparations. Appellant relied on its prior registrations of trademarks including the word CRYSTAL for ladies’ and misses’ dresses, dress ensembles, coats, suits, blouses, skirts, men’s wear, fabrics, piece goods, and the like, and alleged likelihood of confusion.

In view of the similarity of the issues joined by the parties in these three oppositions, the three proceedings were consolidated and moved to final hearing before the board on the same record. The board dismissed all three oppositions in one decision. The board found that in its opinion the sale of cosmetic preparations and wearing apparel under the marks here involved is not reasonably likely to cause confusion in trade as to the origin of the goods. The board found that while opposer’s name and mark DAVID CRYSTAL and the CRYSTAL marks derived therefrom have become distinctive in the apparel field, it does not follow therefrom that the distinctiveness of the CRYSTAL marks extends into the cosmetic and toiletries field. We agree.

Having considered the decision of the board, all of the arguments presented by the parties, and the record before us, we affirm.

Affirmed.

      . Application No. 292,722 filed March 7, 1968.

      . Application No. 292,724 filed March 7, 1968.

      . Application No. 292,725 filed March 7, 1968.

      . Reg. No. 404,730 Dec. 21, 1943
      Reg. No. 535,038 Dec. 19, 1950
      Reg. No. 556,557 Mar. 25, 1952
      Reg. No. 645,442 May 14, 1957
      Reg. No. 649,785 Aug. 6, 1957
      Reg. No. 650,556 Aug. 20, 1957
      Reg. No. 658,088 Feb. 4, 1958
      Reg. No. 706,704 Nov. 1, 1960
      Reg. No. 726,035 Jan. 2, 1962
      Reg. No. 756,133 Sept. 3, 1963
      Reg. No. 760,386 Nov. 19, 1963
      Reg. No. 764,347 Feb. 4, 1964
      Reg. No. 841,287 Dec. 26, 1967


text:
    DAVID CRYSTAL, INC., Appellant, v. ESTEE LAUDER, INC., Appellee.
    Patent Appeal No. 8924.
    United States Court of Customs and Patent Appeals.
    April 19, 1973.

      Ronald L. Panitch, Edward C. Gonda, Seidel, Gonda & Goldhammer, Philadelphia, Pa., attorneys of record, for appellant.
    Alex Friedman, New York City, attorney of record, for appellee.
    Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and ALMOND, Senior Judge.
   PER CURIAM.

This appeal is from the decision of the Trademark Trial and Appeal Board, reported at 167 USPQ 411 (1970), dismissing appellant’s opposition to appellee’s application to register CRYSTAL PAVILION for cosmetic skin lotion. Appellant relied on its prior registrations of marks including the word CRYSTAL for ladies’ and misses’ dresses, dress ensembles, coats, suits, blouses, skirts, men’s wear, fabrics, piece goods, and the like, and alleged likelihood of confusion.

Having considered the decision of the board, all of the arguments presented by the parties, and the record before us, we affirm. We agree with the board that the marketing of a cosmetic skin cream under the mark CRYSTAL PAVILION would not suggest to purchasers that it originates from or is any way associated with the producer of DAVID CRYSTAL or CRYSTAL clothing.

Affirmed.

      . Application No. 300,809 filed June 19, 1968.

      . Reg. No. 404,730 Dec. 21, 1943
      Reg. No. 535,038 Dec. 19, 1950
      Reg. No. 556,557 Mar. 25,1952
      Reg. No. 645,442 May 14, 1957
      Reg. No. 649,785 Aug. 6, 1957
      Reg. No. 650,556 Aug. 20, 1957
      Reg. No. 658,088 Feb. 4, 1958
      Reg. No. 706,704 Nov. 1,1960
      Reg, No. 726,035 Jan. 2, 1962
      Reg. No. 756,133 Sept. 3,1963
      Reg. No. 760,386 Nov. 19, 1963
      Reg. No. 764,347 Feb. 4, 1964
      Reg. No. 841,287 Dec. 26,1967


text:
    DAVID CRYSTAL, INC., Appellant, v. HELENE CURTIS INDUSTRIES, INC., Appellee.
    Patent Appeal No. 8943.
    United States Court of Customs and Patent Appeals.
    April 19, 1973.

      Ronald L. Panitch, Edward C. Gonda, Seidel, Gonda & Goldhammer, Philadelphia, Pa., attorneys of record, for appellant.
    Lewis D. Konigsford, Chicago, Ill., attorney of record, for appellee.
    Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and ALMOND, Senior Judge.
   PER CURIAM.

This appeal is from the decision of the Trademark Trial and Appeal Board, reported at 168 USPQ 124 (1970), dismissing appellant’s opposition to appellee’s application to register ICE CRYSTALS for bath oil. Appellant relied on its prior registrations of trademarks including the word CRYSTAL for ladies’ and misses’ dresses, dress ensembles, coats, suits, blouses, skirts, men’s wear, fabrics, piece goods, and the like, and alleged likelihood of confusion.

Having considered the decision of the board, all of the arguments presented by the parties, and the record before us, we affirm. We agree with the board that the respective marks neither look nor sound alike, and we agree that there is no reasonable likelihood of confusion or mistake.

Affirmed.

      . Application No. 292,271 filed March 1, 1968.

      . Reg. No. 404,730 Dec. 21, 1943
      Reg. No. 535,038 Dec. 19, 1950
      Reg. No. 556,557 Mar. 25, 1952
      Reg. No. 645,442 May 14, 1957
      Reg. No. 649,785 Aug. 6, 1957
      Reg. No. 650,556 Aug. 20, 1957
      Reg. No. 658,088 Feb. 4, 1958
      Reg. No. 706,704 Nov. 1, 1960
      Reg. No. 726,035 Jan. 2, 1962
      Reg. No. 756,133 Sept. 3, 1963
      Reg. No. 760,386 Nov. 19, 1963
      Reg. No. 764,347 Feb. 4, 1964
      Reg. No. 841,287 Dec. 26, 1967


author: PER CURIAM:

text:
    Stanford I. FEIGELMAN and Eugene Aristoff, Appellants, v. John W. MYERS and William C. Lanning, Appellees.
    Patent Appeal No. 9203.
    United States Court of Customs and Patent Appeals.
    April 26, 1973.

      Jacques M. Dulin, Molinare, Allegretti, Newitt & Witcoff, Chicago, Ill., for appellants.
    L. Malcolm Oberlin and Louis N. French, Young & Quigg, Washington, D. C., for appellees.
   PER CURIAM:

Appellees have filed a motion to dismiss this appeal on the ground that it is interlocutory in nature and therefore not within the jurisdiction of the court. The motion is opposed by appellants. We grant the motion to dismiss.

In Myers v. Feigelman, 455 F.2d 596, 59 CCPA 834 (1972), this court reversed the decision of the Board of Patent Interferences and remanded the case to the board for consideration of the suppression and concealment issue which had been properly before the board, but had not been resolved. Remand was “to allow the board to make a fully focused inquiry into this difficult question.” Appellants filed a motion with the board asking for a reopening of the testimony period. This appeal is on the denial of that motion by the board.

Appellants urge that the board’s refusal to reopen the testimony period constitutes a failure to comply with the court’s mandate. That position is devoid of merit. The court only required the board to resolve the issue it had not ruled on previously. The court’s opinion does not suggest that appellants were entitled to introduce additional evidence into the record. There is no indication that appellants were to be placed in a better position than they would have been in had the board resolved the issue earlier, as it could have, on the record before it.

We agree with appellees that this appeal does not arise out of a final decision of the board. See Knickerbocker Toy Co. v. Faultless Starch Co., 467 F.2d 501, 59 CCPA _ (1972). The appeal is accordingly dismissed. It is so ordered.


author: LANE, Judge.

text:
    HOLIDAY MAGIC, INC., Appellant, v. HOLIDAY, INC., Appellee.
    Patent Appeal No. 8907.
    United States Court of Customs and Patent Appeals.
    May 3, 1973.
    John P. Sutton, Limbach, Limbach & Sutton, San Francisco, Cal., attorneys of record, for appellant.
    Thomas B. Graham, New York City, attorney of record, for appellee.
    Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and ALMOND, Senior Judge.
   LANE, Judge.

This appeal is from the decision of the Trademark Trial and Appeal Board, reported at 167 USPQ 118 (1970), sustaining appellee’s opposition to appellant’s application to register HOLIDAY TAN with a background design for suntan cream. In its application, appellant disclaimed the word TAN apart from the entire mark. The opposer relied on its prior trademark use of the word HOLIDAY on its lines of cosmetics, toilet preparations, and skin creams. Both sides took testimony. The board concluded that there was no real distinction between the trade channels for the respective goods. The board found that when considered in their entireties, applicant’s mark so resembles opposer’s HOLIDAY that there would be a likelihood of confusion or mistake. The board adhered to its decision on reconsideration. We affirm.

Appellant contends that the board refused to consider the HOLIDAY TAN mark in its entirety and chose to ignore the fact that appellant has registered the sunburst and snowflake design which forms the background design for its HOLIDAY TAN mark. The board did consider the appellant’s mark in its entirety and in its decision stated:

[T]he background design of applicant’s mark would have little or no impact on purchasers of its product, who ask for goods by word mark rather than by background design. Since the word “TAN” is obviously descriptive of a tanning lotion and has therefore been disclaimed, its incorporation in applicant’s mark is insufficient to distinguish it from opposer’s “HOLIDAY” despite the existence of various third-party registrations of or including “HOLIDAY.”

Appellant has argued before us that its mark is more than mere words and that cosmetics are selected visually as much as being asked for by words. We agree. Both designs and words produce visual impressions when goods are being selected. However, we conclude that appellant’s mark for suntan cream, considered in its entirety, when compared with appellee’s prior use of the term “HOLIDAY” in connection with its sales of skin creams, would be likely to cause confusion, or to cause mistake, or to deceive. Appellant already has prima facie rights in its sunburst and snowflake design, by its registration No. 896,125, August 4, 1970, for suntan cream.

The “DAIRY CHARM” ease, cited by appellant, Cooperative Quality Marketing, Inc. v. Dean Milk Company, 314 F.2d 552, 50 CCPA 1138 (1963), is clearly distinguishable in that the word portions of the respective marks in that case were quite different, “DAIRY CHARM FROM FARMER TO CONSUMER” for butter, opposed by “COUNTRY CHARM” for dairy products.

We agree with the board’s affirmance sustaining the opposition and therefore affirm.

Affirmed.


author: RICH, Judge.

text:
    60 CCPA
    The UNITED STATES, Appellant, v. F. W. MYERS & CO., INC., Appellee.
    Customs Appeal No. 5481.
    United States Court of Customs and Patent Appeals.
    May 3, 1973.

      Harlington Wood, Jr., Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, Patrick D. Gill, New York City, for the U. S.
    Barnes, Richardson & Colburn, New York City, attorneys of record, for appellee; James S. O’Kelly, New York City, of counsel.
    Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and ALMOND, Senior Judge.
   RICH, Judge.

This appeal is from the decision of the United States Customs Court, Third Division, in F. W. Myers & Co. v. United States, 67 Cust.Ct. 75, C.D. 4256 (1971), sustaining appellee’s protests against the classification of certain crawler tractors imported from Canada under TSUS 692.-35 as “Tractors * * * Other,” and holding the imported tractors classifiable free of duty under item 692.30 TSUS as “Tractors suitable for agricultural use * * We affirm.

The imported crawler tractors were of two types, the J-5 and the Muskeg M (the latter hereinafter referred to simply as the “Muskeg” tractors). The parties stipulated that the J-5 tractors are in fact “suitable for agricultural use” thus narrowing the issue to whether the Muskeg tractors are “suitable for agricultural use.” The J-5 tractors are similar to the Muskeg tractors and are important here, however, because the parties have, by stipulation, incorporated an earlier case, F. W. Myers & Co. v. United States, 59 Cust.Ct. 445, C.D. 3182 (1967), in which it was held that both the J-5 and Muskeg tractors were “suitable for agricultural use” and thus free of duty within item 692.30. The Customs Bureau has thus acepted the decision in the prior case with respect to the J-5’s, but now disagrees with respect to the Muskegs.

The lower court here found the incorporated case to have established that the basic construction of the J-5 and Muskeg tractors was the same, reviewed the record and decision in that case and the testimony of the witnesses presented by appellant in this case, and concluded that:

The difference between the J-5 and Muskeg tractor is in degree and not in kind. Plaintiff has met the suitability for agricultural usage test. It, therefore, follows that the protests must be sustained.

The Customs Court noted that the “Explanatory Notes” to the Tariff Classification Study dated November 15, 1960, at pp. 325-26 show that item 692.30 changed the prior treatment of tractors chiefly used for agricultural purposes by providing for tractors “suitable for agricultural use.”

The parties agree with the Customs Court’s analysis of the history of item 692.30 as indicating that the item changed the prior concept of “chief use” to one of “suitability for use,” and both admit that “suitable for use” means “actually, practically, and commercially fit.” Keer, Maurer Co. v. United States, 46 CCPA 110, C.A.D. 710 (1959). In Keer, Maurer, this court said (p. 114):

The words “suitable for use,” as applied in the Customs law means “actually, practically, and commercially fit” for such use. Kahlen v. United States, 2 Ct.Cust.Appls. 206, T.D. 31947; United States v. Lorsch & Co., 8 Ct. Cust.Appls. 109, T.D. 37222; United States v. Amerman & Patterson, et al., 9 Ct.Cust.Appls. 244, T.D. 38205; United States v. Geo. S. Bush & Co., Inc., et al., 26 CCPA 145, C.A.D. 8; Coro, Inc. v. United States, 41 CCPA 215, C.A.D. 554. Such suitability does not require that the merchandise be chiefly used for the stated purpose, United States v. Lorsch & Co., supra, but it does require more than “ * * evidence of a casual, incidental, exceptional, or possible use. * * * ” Kahlen v. United States, supra.

We have reviewed the evidence of record including the testimony in the incorporated case and by the appellant’s witnesses in this case and have concluded that the evidence fully supports the findings by the Customs Court below that the basic construction of the Muskeg and J-5 tractors is the same and the Muskeg tractors are actually, practically, and commercially fit for agricultural purposes, and such findings are not clearly contrary to the weight of the evidence. United States v. F. W. Myers & Co., 45 CCPA 48, C.A.D. 617 (1958).

The Customs Court quoted the following statement from its opinion in the incorporated case:

The unrefuted evidence that the involved tractors are used on farms for spreading manure and lime and other fertilizer, used in sugar bushes for gathering maple sap, used for plowing, used to pull hay balers, used for seeding, used to pull harvesters in harvesting corn, and used in disk harrowing is sufficient to show that said tractors are actually, practically, and commercially fit for agricultural purposes.

Appellant, in contending that the records failed to establish a substantial use of the Muskeg tractors in agriculture, asserts that the statement in the incorporated case relied upon by the Customs Court does not represent findings of the court in the incorporated case with respect to the Muskeg, tractors, but represents that court’s findings with respect to the J-5 tractors, which appellant maintains are substantially different from the Muskegs.

With respect to this question, whether the record in the incorporated case supports the findings of the Customs Court here that the Muskeg tractors, as opposed to the J-5’s, are suitable for use on farms we have reviewed the record and are satisfied that the evidence supports appellee’s view that at least some of the witnesses in the incorporated ease were testifying to the use of both types of tractors or the Muskegs alone in agricultural pursuits, and that there is ample support in the record for the finding of the court below that the Muskegs are actually, practically, and commercially fit for agricultural purposes.

The judgment of the Customs Court is affirmed.

Affirmed.

      . As appellant states it, “the additional power, tractive capability and flotation of the Muskeg, causing it to be a far more expensive vehicle, is what dedicates the Muskeg to the more rigorous non-agricultural use to which the records establish it is overwhelmingly put.”

      . Appellant has noted that there are involved in the present case “differing models of the Muskeg tractor itself,” some of which models may not have been involved in the prior case, but it lias not argued tliat any such model differences represent differences in the suitability of tiie Muskegs for agricultural pursuits. The importations here involve some “Carrier” models of the Muskegs which are basically the same as the regular Muskeg tractors except that the engine is located closer to the front of the frame. The incorporated case may have involved only the regular Muskeg tractors.


text:
    Application of Michel JUILLARD and Jean Legros.
    Patent Appeal No. 8881.
    United States Court of Customs and Patent Appeals.
    May 3, 1973.
    Herman Hersh, McDougall, Hersh & Scott, Chicago, Ill., attorneys of record, for appellants; Keith V. Rockey, Chicago, Ill., George A. Degnan, Arlington, Va., of counsel.
    S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents; Jack E. Armore, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, and RICH, ALMOND, BALDWIN and LANE, Judges.
   BALDWIN, Judge.

This appeal is from the decision of the Patent Office Board of Appeals, affirming the examiner’s rejection under 35 U.S.C. § 103 of claims 1, 3-7 and 9-12, all of the claims in appellants’ application. We affirm.

The Invention

Appellants’ invention concerns the addition of a particular type of alumina to polymers and copolymers of polyvinyl chloride. Product claim 7 is sufficiently representative:

7. A polymeric plastic material formed of a polymer or copolymer of polyvinyl chloride and an alumina in the form of a hydrargillite uniformly distributed throughout the plastic material in an amount within the range of 0.05 to 10 per cent by weight of the plastic material and in which the alumina has a pseudo-hexagonal lamella and a BET specific area within the range of 30 to 50 m2/g, a diameter within the range of 500 to 2000 A and a thickness within the range of 100 to 300 A.

It is contended that the addition of that particular type of alumina to the polymers has at least two beneficial effects: increase in impact strength and decrease of the “gellification” time. Claim 1 states “In the method of increasing the rate of gellification of polyvinyl chloride comprising working the polyvinyl chloride * * * ” having 0.5 to 10 weight percent of the form of alumina specified in claim 7 uniformly distributed throughout the polymer. It is unnecessary to detail here the additional recitations found in claims 3-6 and 9-12.

The Prior Art

Yngve relates to fillers for use in certain vinyl resins, particularly “conjoint” polymers of vinyl chloride with vinyl acetate. The patent states:

According to this invention, it has been found that plastic compositions containing finely divided or colloidal aluminum hydrates intimately associated with the vinyl resins are characterized by the desired properties of increased impact strength and attractive surface luster.

Data is presented showing that resin compositions containing alumina in various amounts from 5% to 20% had greater impact strength than the same resin composition without any alumina. Yngve states that the alumina used “may be selected from any of the grades available * * No particular method of incorporating the alumina into the resin is mentioned.

Michel et al. (Michel) relates to a method of producing the alumina hydrargillite in the form of crystals of high chemical purity. Concerning the crystals obtained, which are referred to as “lamellar bod[ies] of regular structure,” Michel states:

Their maximum dimensions in the plane, directly measured according to photographs on the electronic microscope actually range from 200 to 1000 A. and, from measurements of their specific surfaces, their thickness can be deduced and has been found to vary form [sic] 100 to 200 A.

The patent also states that “this alumina variety is used as a filming agent and as a charge and pigment.”

Schildknecht describes the use of two-roll mills in high polymer processing. The reference states that thermoplastic resins, including vinyl chloride resins, are often compounded on mills.

The Rejection

Claims 1 and 3-6 were rejected as unpatentable, under section 103 of the statute, over Yngve in view of Schildknecht. Claims 7 and 9-12 were rejected under that section as unpatentable over Yngve, alone or in view of Michel. The examiner was of the view that it would have been obvious to use the Michel alumina as the alumina in Yngve. The examiner stated that appellants had failed to show that the combination of the hydrargillite claimed with polyvinyl chloride resins gives unexpected results as compared with the combination of other aluminas with polyvinyl chloride resins. The board agreed with and amplified the examiner’s position. With regard to the rejection of process claims 1 and 3-6, the board said:

By combining Yngve with Schildknecht, the Examiner’s position appears to be that, although Yngve does not say how he incorporates the hydrated alumina in the resin, one having ordinary skill would normally do so by the most widely used ways of blending or compounding such materials and that these ways involve working, as shown by Schildknecht. His conclusion is that the invention as a whole would have been obvious to a person having only ordinary skill in the art. Absent some evidence that the contendedly unobvious results are unique to the particular alumina hydrate employed, or at least that they are not shared by the alumina hydrates available prior to Michel et al., we agree with this conclusion, and will sustain the rejection.

Opinion

The evidence in this record that the claimed invention would have been obvious is clearly sufficient to establish a prima facie case. Yngve calls for the combination of any available grade of alumina with his polyvinyl chloride film, and the high grade hydrargillite described in Michel would seem eminently-suited for such use.

We must also conclude that the case for obviousness has not been rebutted by appellants. In In re Freeman, 474 F.2d 1318 (C.C.P.A.1973), we said:

In order for a showing of “unexpected results” to be probative evidence of non-obviousness, it falls upon the applicant to at least establish: (1) that there actually is a difference between the results obtained through the claimed invention and those of the prior art, In re Klosak, 455 F.2d 1077, 59 CCPA 862 (1972); and (2) that the difference actually obtained would not have been expected by one skilled in the art at the time of invention, Id.; In re D’Ancicco, 439 F.2d 1244, 58 CCPA 1057 (1971).

In that case we found that the evidence presented met the above conditions and was thus probative on the question, but was insufficient to rebut a strong evidentiary case for obviousness. Here we find that appellants have failed to establish that the evidence they present is probative on the question of obviousness.

Appellants contend that their evidence demonstrates unexpected results both with regard to impact strength and to a reduction in gellification time. Appellants’ main case concerning impact strength deals with a comparison of certain test results reported in their specification with test results reported in the Yngve patent. As the board stated:

[T]he data in the specification herein is not directly comparable to that in the patent since it would be reasonable to expect differences in physical properties explainable on the basis of differences in composition or molecular weight of resin, presence or absence of plasticizers or amounts of the latter, etc., all of which are uncontrolled when trying to compare what appellants have done with what the reference reports.

While appellants ostensibly agree that no direct comparison can be made, at one point in their brief they attempt to give the impression that the only reason the tests are not directly comparable is that the test results are reported in different units. We have examined the description of the tests presented in the record. We agree with the differences in conditions noted by the board and further note that there are significant differences in the testing methods themselves, such as the way in which the samples are prepared. The record is devoid of affidavits of experts or other competent evidence as to why the results of the tests might be comparable at all under these circumstances. Thus, so far as the record shows, the alumina used in Yngve might even be unexpectedly superior to appellants’ alumina. Moreover, even were we to accept appellants’ contention that “a comparison can be made as to the trends caused by variations in the amounts of alumina of Yngve and appellants,” the most that could be said is that appellants have established a difference between the effect of their alumina and the effect of Yngve’s alumina. The record contains nothing, other than attorney’s arguments, which would indicate that the difference would not have been expected by the skilled in the art.

Appellants’ specification does show that a particular resin composition having 10% of their alumina had substantially higher impact strength than the same composition containing 10% of an alumina known as “Boehmite.” However, again the record is lacking in competent evidence — concerning the nature of Boehmite, and that the difference found would have been unexpected — and attorney’s arguments cannot take the place of evidence.

As to “gellification” times, nothing is presented showing the effect of appellants’ alumina as compared with any prior art alumina. Thus appellants have failed to establish any difference over the prior art, much less any unexpected difference. Cf. In re Klosak, supra, 455 F.2d at 1080, 59 CCPA at _.

The decision of the board is affirmed.

Affirmed.

      . Serial No. 588,666, filed September 30, 1966.

      . The board stated that this recited lower limit was an “obvious error” and presumed for purposes of the appeal that the correct range is 0.5-10 percent. We have also so assumed.

      . U.S. Patent No. 2,370,280, issued February 27, 1945.

      . U.S. Patent No. 3,411,876, issued November 19, 1968, on an application filed May 25, 1964.

      . Schildknecht, Polymer Processes, pp. 700-01 (1956).

      . Certain alleged admissions in appellants’ specification were relied on as an alternative to reliance on the Michel patent. The view we take of the case renders it unnecessary to consider this alternate ground of rejection.


text:
    Application of Irby Cullen JONES, Jr., et al.
    Patent Appeal No. 8864.
    United States Court of Customs and Patent Appeals.
    May 3, 1973.
    Glwynn R. Baker, Midland, Mich., Atty., of record, for appellants. Stephen Hoynak, Midland, Mich., of counsel.
    S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents. Fred E. McKelvey, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and WATSON, Judge, United States Customs Court, sitting by designation.
   LANE, Judge.

This appeal is from the decision of the Patent Office Board of Appeals, adhered to on reconsideration, affirming the rejection of claims 1, 2, 3 and 5 of appellants’ application serial No. 562,476, filed July 5, 1966, entitled “Method of Extracting Dissolved Ingredients from a Slurry,” for obviousness under 35 U.S.C. § 103. We affirm.

The method of extracting dissolved ingredients from a slurry claimed by appellants comprises in general the following steps: continuously passing the slurry into the upper portion of an open column, effecting a countercurrent flow of an extraction liquid, removing from the lower portion a slurry free of one solute, and removing from the upper portion a liquid containing the solute. Claim 1 reads (paragraphing ours):

1. A method of extracting dissolved ingredients from a slurry of a solid and a fluid containing solute dissolved therein comprising
continuously passing said slurry into the upper portion of an open column having no structural elements to obstruct the free fall of slurry,
effecting continuous, counter-current, non-turbulent flow in said column of an extraction liquid which is miscible with, and a solvent for at least one solute contained in, the fluid of said slurry,
removing from a lower portion of said column a slurry substantially free of at least one solute contained in the slurry entering the said column and,
removing liquid containing the extracted solute from said column at a point above the entry point of said slurry and at a rate greater than the feed rate of said extraction liquid into the column.

The other appealed claims depend from claim 1 and add that the slurry is aqueous and the extracting liquid is water, or that the slurry contains NaOH and NaCl, or that the method is carried out at ambient temperature and pressure. Appellants’ application does not illustrate any extraction apparatus but in example it describes an open column 24 feet, 3% inches long and 1.99 feet in diameter with a drain to remove extracting fluid as it overflows from the column, with a slurry feed line extending downward 2 feet, 9 inches into the top of the column, and with an extraction liquid feed line extending to a sparger about 15 inches from the bottom of the column. The column bottom is described as conical in shape and connected to a valved line used to control the flow rate of slurry therethrough. In other examples, the specification describes the use of a glass column 4 inches inside diameter and 10 feet high with feed lines and valves, and the use of a column having an inside diameter of about 6 inches and 23 feet high. The appealed claims do not recite these specific structural details.

The references relied on by the board and the only ones we need consider are:

Barnard et al. (Barnard) 3,278,275 Oct. 11, 1966 (on an application filed Feb. 14,1963)

Goerg 3,309,177 Mar. 14, 1967 (on an application filed Aug. 5, 1963)

Barnard discloses a process for removing sodium hydroxide from a sodium hydroxide slurry. The specification states that an aqueous slurry of salt and caustic is fed into the top of a column, that water is supplied to the bottom of the column, and that an aqueous salt solution containing substantially all of the caustic of the original slurry feed mixture is removed from the top of the column. The column illustrated in Barnard includes a plurality of transverse trays each of which supports a number of vertical riser tubes and has a number of downcomer holes therein.

Goerg discloses apparatus for counter-current washing of solids with liquids. The apparatus includes a vertically mounted column into which the mother liquor is introduced at the top. The column is provided in its lower portion with an inlet for the washing liquid. There is a discharge conduit near the top for removing solid-free mother liquor and washing liquid. There is a discharge conduit at the bottom for the removal of solid materials and washing liquid. The Goerg apparatus includes a perforated transverse plate called a settling bottom. Goerg contemplates using the apparatus to remove impurities from sodium chloride slurries.

The board found that Goerg uses an essentially unobstructed tower and that the rising aqueous wash liquid displaces the mother liquor via an upper discharge conduit. The board held that since the Goerg process accomplishes the same result as appellants’ method, any agitation is immaterial and found that appellants’ method provides at least some degree of agitation at the point of entry of the wash water. The board found that appellants had merely omitted the Goerg transverse plate and its function and concluded that Goerg and appellants both displace the mother liquor by a rising flow of aqueous wash liquid.

Appellants contend that their method requires the use of an open column which is free of obstructions such as plates or baffles and requires nonturbulent flow. The Goerg apparatus provides a vertical wash vessel in which there are no baffles, plates or other structural elements projecting inwardly from the inner surface of the column wall in that portion of the vessel between the upper inlet opening and the “sprinkler-like distributor” through which the washing liquid is introduced. We do not find the presence of the settling bottom in the Goerg apparatus to render appellants’ claimed subject matter nonobvious, assuming that such a structure is precluded from appellants’ claims. It appears that Goerg intended nonturbulent flow, and although appellants allege that the Goerg process would have turbulent flow, they have provided neither explanation nor evidence tending to support such a contention. We agree that it would have been obvious to omit the settling bottom and lose whatever advantages might flow from its use. The distributor in Goerg corresponds to the “sparger” described by appellants, and it is concluded that there is no difference in agitation of the liquids in the absence of evidence to the contrary.

Appellants’ contention that the art does not show removal of the liquid containing the extracted solute from the column at a point above the entry point of the slurry is not sound. Goerg teaches provision of an upper inlet opening which extends below the upper discharge conduit so that slurry enters the vessel below the conduit through which extracted solute is discharged. Appellants also contend that Barnard does not teach removal of the liquid containing the extracted solute at a rate in excess of the rate at which water is introduced into the open column. The Barnard drawing discloses the introduction of water at the top of his column at the rate of 182.7 pounds per minute, the removal of water at the bottom of the column at the rate of 75.8 pounds per minute, and the introduction of the wash water at the bottom of the column. The aqueous salt solutions removed from the top of the column include the difference between 182.7 and 75.8, or 106.9 pounds of water per minute in excess of the flow of wash water into thé bottom of the column.

It is concluded that the disclosures of Goerg and Barnard make out a persuasive case of obviousness. While the board decisions do not specifically mention the affidavit of record asserting commercial success and fulfillment of long-standing needs, we think it apparent that the bare allegations of the affidavit provide no evidentiary support for suh contentions. The decision of the board is affirmed.

Affirmed.


text:
    60 CCPA
    The UNITED STATES, Appellant, v. NOVELTY IMPORTS, INC., Appellee.
    Customs Appeal No. 5505.
    United States Court of Customs and Patent Appeals.
    May 3, 1973.

      Harlington Wood, Jr., Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, John A. Gussow, New York City, for the United States.
    Serko & Sklaroff, New York City, attorneys of record, for appellee; Murray Sklaroff, New York City, of counsel.
    John S. Rode, New York City, of counsel, amicus curiae.
    Before MARKEY, Chief Judge, RICH, BALDWIN, and LANE, Judges, and ALMOND, Senior Judge.
   RICH, Judge.

This is an interlocutory appeal under 28 U.S.C. § 1541(b), as amended, and Rule 13.2 of the Customs Court, from an order of the United States Customs Court in Novelty Imports, Inc. v. United States, 68 Cust.Ct. 362, C.R.D. 72-7, 341 F.Supp. 1228 (1972), denying appellant’s motion to vacate a decree nisi and an order which had dismissed the civil action with respect to only two of the several entries contained therein upon a motion of appellant to dismiss the entire civil action. We affirm.

The Facts

The facts pertinent to this appeal are not in dispute. Several denied protests of appellee were included in a consolidated “single civil action” pursuant to 28 U.S.C. § 1582(d). With respect to two of the entries, No. 1110266 and 751722, liquidated duties had not been paid at the time of filing the summons, as required by 28 U.S.C. § 1582(c). Appellant moved to dismiss the action pursuant to this provision. In an order dated October 22, 1971, Judge Rao, characterizing appellant’s motion as a “motion to dismiss the civil action as to entries 1110266 and 751722,” dismissed it only with respect to the two entries as to which liquidated duties had not been paid. Appellant sought rehearing of this order requesting, inter alia, an interlocutory order permitting application to this court for review of the denial of appellant’s motion to dismiss the entire civil action.

The Customs Court, per Judge Rao, denied appellant’s motion to dismiss the entire civil action, but granted appellant’s request and included a statement in the order permitting this interlocutory appeal.

OPINION

Judge Rao, in the memorandum accompanying the order of the Customs Court, correctly framed and decided the issue as being, “whether under 28 U.S.C. § 1582, as amended by the Customs Courts Act of 1970, this court may entertain jurisdiction of a civil action combining a number of denied protests covering several entries when liquidated duties have not been paid as to some of the entries.” The memorandum reproduces and reviews in detail the language of the statute and its legislative history and reaches the conclusion that neither the language of the statute nor the legislative history indicates that Congress intended to change the prior law such that “a joinder of a number of denied protests in a single summons would imperil the entire action if liquidated duties had not been paid as to any one entry.” The Customs Court thus held that “joinder under section 1582(d) does not merge the causes of action so that all duties as to all entries must be paid as a condition precedent to the court’s jurisdiction over the entire civil action.”

We fully agree with the reasoning and conclusion of Judge Rao’s well reasoned memorandum, and adopt them as our own. The appellant’s argument here is essentially the same made before the Customs Court, and we find it to be fully answered. Apropos also, we think, is the reasoning of Judge Watson in denying a motion to dismiss a consolidated action under the same set of facts in E. S. Novelty Co. v. United States, 68 Cust.Ct. 374, C.R.D. 72-10 (1972), as well as the following observations which he made:

This problem has been more troublesome than the length of this memorandum may indicate. After considerable reflection, I have decided that it is proper to dismiss only the portion of the civil action constituting the claim which contains the jurisdictional defect. I reach this conclusion primarily because I detect in this statute behind all procedures and forms, an underlying intent to allow the tariff treatment of each entry of merchandise or even each category of merchandise to give rise to a distinct legal claim. It happens that considerations of convenience and economy permit the combination of legal claims at various levels, such as the existence of numerous categories of merchandise (found in one entry) in one protest or the joining of numerous entries in one protest or the joining of numerous protests in one civil action. Nevertheless, the tariff treatment of the single entry or the single category of merchandise remains for me the most fundamental and indivisible circumstances which can give rise to legal claims. It is inconceivable that a separate and genuine legal claim can be destroyed by deficiencies in other claims with which it has become associated. It would be unjust if the mode in which an otherwise unimpaired claim reaches the court becomes a determinative factor. It would be intolerable if a statute whose fundamental purpose is to provide for administrative and judicial review was interpreted in a way which limited such review on artificial and technical grounds. So long as a valid protest has been filed and the duties paid on a given entry or category of merchandise, the plaintiff is entitled to judicial review of the tariff treatment of that entry or category. [Footnotes omitted.]

All we would add is the observation that — to borrow a phrase from Solicitor General Griswold — statutes should not be given a “wooden and even perverse construction.”

The order of the Customs Court is affirmed.

Affirmed.

      . The Customs Court’s denial, in the same order, of an alternative motion to quash the summons and dismiss the civil action pursuant to the decree nisi, is, according to appellant, not the subject of this appeal.

      . § 1582. Jurisdiction of the Customs Court
      * * * * *
      (d) Only one civil action may be brought in the Customs Court to contest the denial of a single protest. However, any number of entries of merchandise involving common issues may be included in a single civil action. Actions may be consolidated by order of the court or by request of the parties, with approval of the court, if there are common issues.

      . § 1582. Jurisdiction of the Customs Court
      (c) The Customs Court shall not have jurisdiction of an action unless (1) either a protest has been filed, as prescribed by section 514 of the Tariff Act of 1930, as amended, and denied in accordance with the provisions of section 515 of the Tariff Act of 1930, as amended, or if the action relates to a decision under section 516 of the Tariff Act of 1930, as amended, all remedies prescribed therein have been exhausted, and (2) except in the case of an action relating to a decision under section 516 of the Tariff Act of 1930, as amended, all liquidated duties, charges or exactions have teen, paid at the time the action is filed. [Emphasis added.]

      . The Customs Court noted :
      Under prior statutes it has been held that each invoice and entry is to be deemed and treated as a separate transaction for the appraisement of merchandise and the assessment of duties. Sampson v. Peaslee, 61 U.S. 571, 20 How. 571, 15 L.Ed. 1022 (1858); Omega Import Co. v. United States, 52 Cust.Ct. 425, Reap.Dec. 10671 (1964), rehearing den. 52 Cust.Ct. 472, Reap. Dec. 10695 (1964). It has been the practice of this court, under former section 515 of the Tariff Act of 1930, to dismiss protests only with respect to those entries as to which duties had not been paid,

      . “ * * * that section 1582(c) is an explicit limitation of the jurisdiction of the court; that it created an absolute ground for dismissal of an action when all duties have not been paid at the time of filing the action, and that to allow severance of entries wherein duties had not been paid, while proceeding on the balance, would be a substantial departure from the explicit meaning of the statute.