The opinion of the court was delivered by: BAILEY
The chief ground upon which the Board of Appeals of the Patent Office denied the allowance of the claim sought by the plaintiff was that the product claimed was anticipated by an article described in a publication written by Konig. Konig gave a general formula for certain dye stuffs as follows:
[See Illustration in Original]
He also stated that instead of Y a cycloseleno group might occur.
In the plaintiff's product selenium takes the place of Y and n equals three.
Konig does not state that he has produced such a product as the plaintiffs but in effect states that such a product may exist as a dye.
I think that the production of a new chemical compound, even though some one has stated that such a compound may exist is an invention within the meaning of the patent laws and that the plaintiff is entitled to the relief sought.
I. This is an action under R.S. § 4915, 35 U.S.C.A. § 63. The plaintiff, the Eastman Kodak Company, is the sole owner of the entire right, title and interest in an application for United States Letters Patent of Leslie G. S. Brooker, for improvements in Selenotricarbocyanine Dyes filed in the United States Patent Office on March 3, 1936, Serial No. 66,859, a division of application Serial No. 651,870, filed January 16, 1933, and the improvements disclosed and claimed therein.
II. The defendant, Conway P. Coe, is Commissioner of Patents of the United States.
III. The complaint alleges that the defendant, by a decision of the Board of Appeals of the United States Patent Office dated September 16, 1939, and supplemented, upon request for reconsideration, by a decision dated October 3, 1939, has refused to grant to plaintiff on the aforesaid application Letters Patent of the United States containing twelve claims of which the following three are typical:
1o. A selenotricarbocyanine salt.
4. A 2, 2'-dialkylselenotricarbocyanine salt.