314 F.Supp. 235 (D.Conn. 1968), Civ. 12788, Babcock & Wilcox Co. v. Combustion Engineering, Inc.

Docket Nº:Civ. 12788
Citation:314 F.Supp. 235
Party Name:Babcock & Wilcox Co. v. Combustion Engineering, Inc.
Case Date:October 28, 1968
Court:United States District Courts, 2nd Circuit, District of Connecticut

Page 235

314 F.Supp. 235 (D.Conn. 1968)

The BABCOCK & WILCOX COMPANY, Assignee of the Interference Parties Rothemund and Koch


COMBUSTION ENGINEERING, INC., Assignee of the Interference Parties Powell, Schroedter, Clayton and Knust,

Civ. No. 12788.

United States District Court, D. Connecticut.

Oct. 28, 1968

Page 236

Roland T. Bryan, Robertson, Bryan, Parmelee & Johnson, Stamford, Conn., for plaintiff.

Hugh Meade Alcorn, Jr., Ralph G. Elliot, Alcorn, Bakewell & Smith, Hartford, Conn., Eldon H. Luther, Edward L. Kochey, Jr., Windsor, Conn., Arthur S. Tenser, Brumbaugh, Graves, Donahue & Raymond, New York City, for defendant.


ZAMPANO, District Judge.

In this ancillary proceeding to a patent interference contest presently being conducted before the United States Patent Office, the movant, Combustion Engineering, Inc. (hereinafter C.E.), moves to vacate six subpoenas served upon its employees and opposes a motion to produce certain documents under Rule 34 of the Federal Rules of Civil Procedure.

An interference proceeding has been succinctly described in In re Natta, 388 F.2d 215 (3 Cir. 1968), as follows:

A patent interference is a statutory administrative proceeding, authorized by 35 U.S.C. § 135, to determine which of two or more applicants is the first inventor and, therefore, entitled to a patent. The Board of Patent Interferences assumes jurisdiction after the interference is declared by the Patent Examiner. The earliest applicant is awarded the status of senior party and is granted prima facie date of invention as of the date of his application. All other parties are junior and have the burden of proving a date of actual invention earlier than that of the senior party. After each party files a preliminary statement in which he sets forth the earliest date of invention he intends to claim, the parties are granted a period of time to file motions to clarify or reform the interference prior to trial. The motions

Page 237

are heard by the Patent Examiner who originally declared the interference. The preliminary statements are then exchanged, and the matter returned to the Board of Patent Interferences for trial. The Board then establishes a time schedule within which the parties must present their cases. All evidence must conform to the Patent Office rules. Under those rules, testimony is presented by deposition on oral...

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