Walker v. Altorfer

• Citation: 111 F.2d 164,45 USPQ 317
• Decision Date: 29 April 1940
• Docket Number: Patent Appeal No. 4313.
• Parties: WALKER v. ALTORFER.
• Court: United States Court of Customs and Patent Appeals

45 USPQ 317, 111 F.2d 164 (1940)

WALKER v. ALTORFER.

Patent Appeal No. 4313.

Court of Customs and Patent Appeals.

April 29, 1940.

Donald W. Farrington, of Cleveland, Ohio, and Watts T. Estabrook, of Washington, D. C., for appellant.

Joseph H. Milans, of Washington, D. C. (Lionel V. Tefft, of Chicago, Ill., and Calvin H. Milans, of Washington, D. C., of counsel), for appellee.

Before GARRETT, Presiding Judge, and BLAND, HATFIELD, LENROOT, and JACKSON, Associate Judges.

BLAND, Associate Judge.

This is an appeal from the decision of the Board of Appeals of the United States Patent Office, affirming that of the Examiner of Interferences in awarding priority of invention of a design for an ironing machine cabinet to the junior party Altorfer. The interference was declared between the senior party Walker's patent No. Des. 96,149, dated July 2, 1935, issued upon an application filed April 10, 1935, and an application filed October 12, 1935, by the junior party A. W. Altorfer.

The essential elements of the involved design rest in the cabinet which incloses the ironing machinery being in the form of a box-like cover or top portion superimposed upon a metal stand with paneled upright end portions referred to as legs, the so-called leg at each end of the cabinet being in the form of a panel with curved edge portions. The cabinet of each party is provided with short ornamental corrugations, those of Walker being vertically arranged in groups of three at the front and rear of the cover and at the ends of the upright supports, and those of Altorfer being horizontally arranged in groups of two about the front and ends of the cover and at the base of the upright supports. The ornamental corrugations are quite similar in the design of each party.

Altorfer in his preliminary statement alleged that he conceived the invention on or about August 1, 1934; that he first made drawings of the same on August 8, 1934, and a written description of it on July 1, 1935; that he first explained his invention to others August 1, 1934, and that he first embodied the invention in a full-sized device August 15, 1934.

The party Walker in his preliminary statement alleged a date of first drawing of November 7, 1933, a description of the invention to others on the same date and a reduction to practice on November 10, 1933.

Both parties took testimony in an effort to support the said claimed dates.

Since the application of Altorfer was filed subsequent to the issuance to Walker of said patent, the burden was upon Altorfer to prove beyond a reasonable doubt that he was the first inventor within the meaning of the law.

The tribunals below awarded to Walker a date for actual reduction to practice of November 13, 1934. They concurred in holding that he was the first to conceive. These two findings are not seriously questioned here. The tribunals also held that the Altorfer proof showed that while he was last to conceive, he was first to reduce to practice — as early as October 22, 1934 — and that Walker had not shown diligence at and immediately prior to Altorfer's entering the field on August 8, 1934, to the time of Walker's actual reduction to practice on November 13, 1934.

The Examiner of Interferences found that the proofs of Altorfer established his case beyond a reasonable doubt. The Board of Appeals originally held that he had established his case by a preponderance of the evidence and subsequently, in a modified decision, after Walker had petitioned the Commissioner of Patents for a ruling that the case be reopened and that the board reconsider its decision, held that the Altorfer proofs established his case beyond a reasonable doubt.

We find it unnecessary for us to discuss or consider the Walker testimony. The Examiner of Interferences gave the Altorfer proof careful consideration and stated it in considerable detail. In view of our conclusion as to the effect to be given to the Altorfer testimony, we think it desirable to here set out the important parts of the same.

Alpheus W. Altorfer, the appellee, president of Altorfer Bros. Co., of Peoria, Illinois, manufacturer of washing machines and ironing machines; his brother, H. W. Altorfer, vice-president of said company; William A. Moffatt, who had charge of the sheet metal and assembly department of the company; and John A. Castricone, an engineer employed by said company, all testified in regard to the various drawings which were alleged to have been made under the direction of the appellee and also testified with respect to the construction in the Altorfer plant of various structures alleged to embody the essentials of the invention in controversy. Much of the testimony need not be stated here. It shows that in the spring and summer of 1934 appellee became interested in getting out a new design for an ironing cabinet which would embody the desirable features of the design in issue. Various exhibits in the form of drawings to show different efforts that were made in securing a satisfactory design were introduced in evidence and it is shown by the record that drawings, dated June 29, 1934, of a design were made by witness Castricone (Exhibits 3A, B and C) which show a conception of the stand portion of the design in issue, and that on August 8, 1934, another drawing (Exhibit 4) was made by Castricone showing the top and stand combined. Without describing the drawings in detail, we think it appears that as early as August 8, 1934, drawings were completed which disclose the cabinet design in issue.

Moffatt testified that he made a table like that shown by Exhibits 3A, B and C by hand which was finished by the middle of July. Castricone corroborates this testimony except that he says the table was finished the first week of July. The testimony of A. W. Altorfer is to the same effect as that of Castricone. H. W. Altorfer testified that the stand was worked on immediately after the sketches were made, and that when the stand was completed Moffatt made a top for it in August, 1934. Castricone testified that tops like that shown in Exhibit 4 were made around September or October 1934. A. W. Altorfer fixes the date of making the tops immediately after Exhibit 4 was made — August 8, 1934. H. W. Altorfer testified that the stand and upper section and the top for the upper section were completed as an entire assembly in the latter part of August, 1934.

There is testimony that machines with cabinets corresponding to the invention in issue were made in the Altorfer plant and shipped to Chicago to be exhibited at the Household Show in January, 1935. It is shown that these machines were finished the last part of December, 1934. This fact is not disputed by Walker.

H. W. Altorfer testified that the first dies for making the metal cabinets were started in October of 1934 and completed in February, 1935, "prior to the production of the first production machine."

It also is stated in the testimony of H. W. Altorfer that the tops were completed prior to the date of the drawing, Exhibit 14 — October 22, 1934 — and that the ironer embodying the design was also assembled at least by that time.

It is around this Exhibit 14 that much of the controversy in this case pivots. This drawing discloses the cabinet in issue, together with a pivotal or swinging characteristic of the top of the cabinet. The exhibit bears the notation "Altorfer Bro. Co. Peoria Ill. Oct. 22 — 1934" and the signatures "A. W. Altorfer" and "John A. Castricone." A. W. Altorfer and Castricone both testified to their signatures and that they were placed upon the exhibit on October 22, 1934, in the Altorfer place of business in Peoria.

Walker showed by an expert on documents and handwriting that there had been some changes or additions made to said notations on said document but the witness was not able to say definitely whether they...