Talk:Lyon v. Bausch & Lomb, 224 F.2d 530 (1955)

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Courtney

On Petition For Rehearing July 29, 1955.

The first five claims speak of "a stable, water insoluble, evaporated inorganic salt," and of the last two claims in suit number eight is for a "metallic fluoride" and number nine for "magnesium fluoride." The defendant complains that "suitable coatings" is too vague a description, even when accompanied, as the phrase was, by the specific substances mentioned.

The important questions are whether the invention had been disclosed in any earlier patent, or had been publicly used, before Lyon filed his application on November 17, 1942; and whether his contribution will support a patent.

The process was in two steps: first, to heat the "optical surface" in a vacuum until "adsorbed water and grease have been evaporated from the surface," (page two, col. 1, lines 47, 48); and second, to vaporize an "inorganic salt" within the vacuum, meanwhile keeping the "optical surface" heated;

There were also patents for mirrors, designed of course to reflect the light; and therefore the opposite of the patented coatings, whose purpose is to transmit through the "optical surface" as much as possible of the light falling upon it. 

On the other hand Cartwright and Turner took out three earlier patents that were much nearer to Lyon's, for they disclosed coating an "optical surface" with a film of "inorganic salt." The first — No. 2,207,656 — was applied for in December, 1938 and issued on July 8, 1940.

Before considering whether the patent may depend upon it, we will consider whether Lyon's process had been "in public use or on sale" under 35 U.S.C.A. § 102(b); or whether "the invention was made * * * by another" before Lyon, under § 102(g).


Therefore we at length come to the question whether Lyon's contribution, his added step, was enough to support a patent. It certainly would have done so twenty or thirty years ago; indeed it conforms to the accepted standards of that time.

There remains only one other point of enough importance to demand discussion: i. e. whether what Lyon had done before November 17, 1941, — a year before his filing date — forfeited his right to a patent under § 102(b) of the Act: that is, whether he had put it in "public use or on sale in this country, more than one year prior to the date of application".