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In re Wertheim

646 F.2d 527, 209 U.S.P.Q. 554 (1981)

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In re Wertheim

United States Court of Customs and Patent Appeals
646 F.2d 527, 209 U.S.P.Q. 554 (1981)

Facts

In April 1965, John Wertheim filed a Swiss patent application containing a process for freeze-drying coffee extract. Wertheim applied for a United States patent on the process in March 1966 and December 1970. However, the U.S. Patent and Trademark Office (PTO) examiner rejected the application on the ground that it was anticipated in a prior-art reference known as the Pfluger patent. The Pfluger patent itself originated in a series of applications, beginning with Pfluger I in March 1961. Pfluger II, filed in September 1963, was designated a continuation-in-part (CIP) of Pfluger I, meaning that it added new material to the parent application. Pfluger III, a CIP of Pfluger II, followed in January 1966. Pfluger IV, filed in February 1969, finally resulted in the issuance of the Pfluger patent in December 1969. A key limitation of the Pfluger patent involving percentages of concentration of the extract did not appear until Pfluger III. Nevertheless, the PTO examiner extended the effective date of the Pfluger patent to March 1961. The PTO board of appeals affirmed the examiner’s rejection of Wertheim’s patent application. Wertheim appealed to the United States Court of Customs and Patent Appeals.

Rule of Law

Issue

Holding and Reasoning (Rich, J.)

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