delivered the opinion of the court:
This is an appeal from a decision of the Board of Appeals of the United States Patent Office affirming- decisions of the Primary Examiners of Divisions 14 and 32 rejecting claims 14,16 to 21 inclusive, 23 and 24 of ah application for a patent on “Filter Medium and Method of Production.” No claims were 'allowed. Claims 16 to 21, inclusive, are method claims and were rejected by the examiner of Division 14. Article claims 14, 23 and 24 were rejected by the examiner of Division 32.
The method claims were rejected as not defining invention over any one of the following cited art:
Schaefer (British), 231,199, November 5, 1925.
Darier (French), 483,770, May 15,1917.
Darier et al. (French), 492,235, March 11,1919.
Skelton, 1,944,279, January 23, 1934.
Robinson, 2,072,382, March 2, 1937.
The article claims were rejected as unpatentable over- the Skelton patent in view of the two French patents.
In view of our conclusion hereinafter set out, it is not necessary to' quote any of the method claims. Claim 14 is illustrative of the subject matter of the article claims and reads as follows:
14. A filter of the character described for use with internal combustion engines-subject to the vibration and shock of vehicle operation, said filter having in combination : a filter housing providing a filler chamber; and a mass of short discontinuous lengths of relatively thin and relatively flexible drawn wire formed' into tortuous three-dimensional patterns of lengths less than the smallest dimension of said chamber, said formed lengths of wire being intermeshed and being interlinked by turns threaded to form therein a coherent resilient filamentous body with substantially no freedom for relative movement of the individual filaments.
The alleged invention relates to an air filter of the well-known oil bath self-washing type, and the method of making it. Its purpose is to remove dust particles from air which is taken in during the operation of an internal combustion engine. The filter comprises a great number of helices of slender wire in cylindrical, conical or hourglass shape. The helices are deposited one after another in a casing of predetermined form. A jolting action is imparted to the mass as it is being formed so that the helices entirely fill the container. Then pressure is applied so that the helices are compressed into a desired size. Because of the jarring and compressing they become interlaced into a relatively solid mass for the reason that the ends- of the helices act as hooks.
*723The Skelton reference relates to an air cleaner for internal combustion engines and discloses a filter mattress or pad of steel wool compressed to desired density through which the air passes for cooling the engine, the air losing the particles of dirt generally found in the atmosphere.
The Darier patent, No. 483,770, discloses the washing of gases and refrigeration of gases and liquids. It discloses bodies made of spirally twisted wires which are heaped pell-mell or otherwise into the column portion of an apparatus in which vapors or contact of gases and liquids takes place.
The Darier et al. patent, No. 492,235, is for a “Process for removing the dust from and purification of gases and air.” The filter apparatus contains a mass of small metal helices resembling in form those shown in the patent, No. 483,770. It is stated in the specification that “These solenoids [helices] are coated with a suitable viscous liquid the means of applying and regenerating which are reserved.”
The Board of Appeals in its decision dated February 7,1945, cited all. of the references in the dual prosecution of the case.- With respect to the article claims it followed the reasoning of the Primary Examiner, but deemed it unnecessary to discuss the method claims “since the manipulative steps refined therein appear to be conventional.”
In his reasons of appeal to this court, dated March 26, 1945, appellant assigned no reason alleging error in the rejection of the method claims on the Schaefer patent. On November 15, 1945, counsel for appellant for the first time filed in this court a motion for leave to amend the reasons-of appeal by adding the Schaefer patent.
Section 4912 R. S. (35 U. S. C., sec. 16) provides that when an appeal is taken to this court the appellant shall so notify the commissioner and file in the Patent Office his reasons of appeal specifically set forth in.writing w-ithin such time as the commissioner shall appoint. The time appointed by the commissioner under that section is set at 40 days from the date of the decision appealed from by Buie 149 of the Patent Office. The motion to amend must be and is denied because it attempts, after the expiration of the appeal period, to add a new issue. Therefore it is not proper to consider the rejected method claims on their merits, for the reason that no error has been .alleged in the notice of appeal in the rejection on the Schaefer patent.
-The examiner, in rejecting the article claims, pointed out that the French patent No. 492,235 suggested using as an air filter material “a mass of small metallic solenoids resembling in form and cross section those indicated in Patent No. 483,770.”
The helices or spirals of the French patent when prepared as here-inbefore mentioned are placed between metal lattices or other restraining means to form a mass through which a gas stream to be purified is passed by either suction or pumping.
*724The Skelton patent clearly and explicitly teaches the compression of the filter means and the regulation of the compression. To use a mass of helices such as disclosed by the French patent in an intake filter such as that shown by the Skelton patent, in. our opinion does not involve invention. While claims 23 and 24 do not limit the use of the filter to-an internal combustion engine, they were properly rejected for the-same reasons as claim 14.
The affidavits on file indicate that the device of appellant is very efficient and enjoys great commercial success. If there were any doubt concerning the' patentability of the rejected article claims, the affidavits, of course, might be considered in tilting the scale in favor of their patentability. However, we have no such doubt, and therefore-cannot consider the affidavits as imparting patentability to the rejected article claims.
For the reasons contained herein the decision of the Board of Appeals is affirmed.