¶1with whom Smith, Judge, joins, dissenting.
¶2The sole issue is whether appellant’s application contains a disclosure broad enough to support the claims before us.
¶3The main flaw I see in the majority opinion is its preoccupation with those portions of appellant’s disclosure which relate to the subject matter of the allowed claims, all of which have the “high speed *733mixer” limitation. To my mind this is a consideration irrelevant to the issue which faces us. The only question we have to answer is whether in addition to supporting the allowed claims, appellant’s disclosure supports the claims on appeal. I think it does.
¶4Appellant’s specification defines the “high speed mixer” as “Preferably … * one which rotates at a speed of about 1000 rpm or more.” Turbo mixers, colloid mills and pumps including centrifugal pumps are given as acceptable high-speed mixers. The majority notes these facts. It does not, however, seem to recognize the inherent qualification which is placed on the words “high speed mixer” (already qualified by the phrase “about 1000 rpm or more”) by that portion of appellant’s disclosure which states: “In any event, intimate mixing must be achieved in not substantially more than one minute. [Emphasis mine.]” Appellant clearly has indicated to one skilled in the art that a “high speed mixer” may be one which rotates at less than 1000 rpm. In fact, it would seem that if any feature of appellant’s process be important, in addition to the carrying out of the initial phosgenation at a temperature within the range of 60° C. to 80° C., it would be, as stated in the specification, that “intimate mixing of the amine and phosgene [be accomplished] in a short period of time of say from 3 or 4 seconds or not substantially more than about one minute.” [Emphasis mine.] As discussed infra, however, the omission of a limitation in the instant claims relating to this latter point should not be considered by this court to render them defective.
¶5I find in appellant’s specification repeated references to the fact that appellant considers the particular speed of the mixer unimportant. Appellant’s reference to a mixing period of from “3 or 4 seconds” to “more than about one minute” indicates to me that “intimate mixing” may be accomplished by various mixer speeds. Factors which obviously would affect mixing speeds would include the amount of amine and phosgene mixed and the speed with which these constituents are brought together in the primary phosgenating zone. These somewhat elementary considerations are confirmed by statements in appellant’s specification to the effect that “Depending upon the speed of the mixer, the reactants may be fed to the mixer continuously at any rate desired.” (Emphasis mine.) I note that, in reaching their decisions, neither the examiner nor the board discusses the obvious significance of the last quoted sentence in appellant’s specification. The majority states that this sentence “must be considered in connection with the remaining language of the … paragraph in which it appears.” Accordingly, the majority would amend this sentence to read as follows: “Depending upon the speed of the high speed mixer, the reactants may be fed to the high speed *734mixer continuously at any rate desired.” (Emphasis mine.) I find such, a consideration singularly unpersuasive on the issue before us. Of utmost importance is the failure of the majority to consider that the quoted sentence cannot properly be considered in the light of only one paragraph of appellant’s specification but must be considered in the light of the entire specification. The majority fails to acknowledge that the very words “high speed” as they appear in this paragraph are repeatedly qualified elsewhere in the specification. It is manifest to me, therefore, that one skilled in the art, reading appellant’s disclosure, would realize that if, in carrying out the initial phosgenation at a temperature within the range of 60° C. to 80° C., “the reactants” were to be “fed to the mixer” at a relatively low rate, speeds considerably below 1000 rpm could be used. Mixing could still be “intimate” and take place in “not substantially more than about one minute” — indeed in a much shorter time.
¶6The majority appears to attach to the phrase “high speed mixer” a connotation which primarily relates to residence time rather than to the rate of agitation during the mixing process. For example, the majority clearly considers the “high speed” of the mixer as relative to the “time of prior art mixing.” (Emphasis mine.) Careful study of the record fails to show any support for this position. On the contrary, there is evidence in the record that the examiner felt the concepts of residence time and rate of agitation to be separate and distinct. In his action of April 26,1960, the examiner rejected certain claims as “too broad” because, in addition, to a “high-speed mixer” limitation, one relating to “residence time” was not included. If, as defined by the majority, a “high-speed mixer” necessarily refers to a mixer in which the time of mixing is relatively short, what purpose would be served by a separate recitation relating to “residence time” ? The answer is, none. In this regard, I note further that only four of fourteen allowed claims contain limitations to both a primary-phosgenation-residence-time and a “high speed mixer.” I can only conclude on the basis of these facts that the Patent Office has decided that appellant has sufficiently disclosed the utility of an organic isocyanate producing process which does not require specific residence times in the primary phosgenation step. To raise the objection which the majority now raises, that the claims on appeal should contain a limitation relating to a mixing time, to my mind raises an issue clearly not raised by the board nor in the examiner’s Answer. Such action by this court is clearly not in compliance with the statutory mandate that we “determine such appeal on the evidence produced before the Patent Office,” 35 U.S.C. 144, and can only lead to further litigation by way of a justifiable Petition for Rehearing.
¶7*735The issue which faces us in this appeal, as previously indicated, can and should be decided simply on the basis of what appellant considered to be a “high speed mixer” and whether such a mixer is required by his disclosure, viewed in its entirety, as essential to the practice of his invention.
¶8Inasmuch as it is the majority’s position as well as that of the Patent Office that a “high speed” mixer is essential to appellant’s process, it may well be asked what the utility may be of a procedure disclosed by appellant’s specification, which does not require in its broadest aspects a particular rate of agitation. Appellant’s specification answers this question by stating:
Inasmuch as it is mot necessary to cool the reaction mixture in the primary phosgenation step, the subsequent hot phosgenation step may be effected within a shorter period of time than has been possible heretofore.
* ⅜ ⅜ # ⅜ ⅜ *
The temperature of the reactor used for the hot phosgenation may he maintained at the desired reaction temperature from the very outset which mates it possible to carry out the hot phosgenation continuously.
* # ⅜ ⅜ ⅝ * #
The invention is most advantageous if the hot [i.e., secondary] phosgenation is effected continuously since the time required for the hot phosgenation is very short in comparison with the time required in the heretofore available methods. Consequently, the throughput of product in a given sized apparatus can be much greater than the throughput with one of the heretofore available processes.
¶9It appears, therefore, that one aspect of appellant’s invention is a method for producing organic isocyanates which allegedly is faster than prior art methods because secondary or hot phosgenation may be accomplished quicker as a result of the elevated temperature (60°-80° 0.) at which primary phosgenation takes place. With respect to this aspect of appellant’s invention, the only requirement I see as to mixing speed in appellant’s disclosure is that “intimate mixing must take place.”
¶10It is only with respect to those objects of appellant’s invention which deal with high yields and very high weight rates of production, or “throughput” that the Patent Office position with regard to high mixing speed is somewhat persuasive. As to yield, appellant’s specification states:
As pointed out hereinbefore, temperatures of above 60° C. were detrimental and had to be avoided for best results in the primary phosgenation step of prior processes. Very surprisingly, however, it has now been found that temperatures of above 60° C. do not adversely affect the yield when mixing is effected in a high speed mixer.
¶11Mixing speeds of “r.p.m.>1000)” are specifically required in several of appellant’s examples, wherein yields in excess of 95% are alleged,. *736and higher weight rates of mixing (on the order of 1 Ib. per minute or greater) are involved.
¶12It is clear to me, therefore, that while the ultimate goal of appellant’s invention is its utilization in large scale production of organic isocyanates, I think that the cornerstone of this ultimate goal was appellant’s discovery that organic isocyanates could be produced, without the formation of undue amounts of undesirable by-products, by means of a two-step phosgenation process in which the primary phosgenation is carried out within the range of 60°-80° C. and in which particular mixer speeds are not required.
¶13I am, therefore, of the opinion that appellant’s disclosure is sufficient to support claims 10-20.