Atherton v. Payne, Patent Appeal No. 2818.

• Decision Date: 25 January 1932
• Docket Number: Patent Appeal No. 2818.
• Citation: 54 F.2d 821,19 CCPA 867
• Parties: ATHERTON v. PAYNE.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

19 CCPA 867, 54 F.2d 821 (1932)

ATHERTON v. PAYNE.

Patent Appeal No. 2818.

Court of Customs and Patent Appeals.

January 25, 1932.

Samuel E. Fouts, of Los Angeles, Cal. (J. T. Newton, of Washington, D. C., of counsel), for appellant.

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

GARRETT, Associate Judge.

This is an interference proceeding in which Atherton has appealed to this court from a decision of the Board of Appeals of the United States Patent Office affirming a decision of the Examiner of Interferences awarding priority of invention of the subject-matter to Payne.

The subject-matter relates to certain features of a "Remote Control Valve" designed primarily for use in the fuel pipe which leads to a heating furnace; electric means being provided to open the valve for permitting fuel, such as gas, to flow through the pipe, or to close the valve and stop the fuel flow. The electric circuit for so controlling the valve, it is stated, generally leads to some room or rooms remote from the furnace and the valve.

Atherton was granted a patent, No. 1,617,094, issued February 8, 1927, upon an application filed June 27, 1924, during the pendency of an application by Payne, serial No. 513,204, filed November 5, 1921.

Following the issuance of the patent to Atherton, Payne, on January 16, 1928, copied claim 1 of the patent for the purpose of bringing about an interference. Such interference was duly declared by the Examiner on February 15, 1928.

The count reads as follows: "A remote control valve comprising in combination a valve adapted for continuous rotation in one direction, an operating stem connected to the valve to rotate therewith, contact pins on the stem, brushes supported adjacent the stem to form an electric circuit by contact with the pins, electrical means to rotate the valve step by step and cause the pins to make and break an electric circuit at various positions of the valve."

Atherton moved to dissolve the interference upon the ground that Payne "has no right to make the count. * * *"

This motion was denied by the Law Examiner to whom it was referred, whereupon the Examiner of Interferences, no proofs having been taken, rendered his decision awarding priority to Payne who, by reason of his prior filing date, is the senior party.

So we have before us as the primary issue to be determined, the ancillary question of Payne's right to make the claim.

The elements of the count are (a) "a valve adapted for continuous rotation in one direction"; (b) "an operating stem connected to the valve to rotate therewith"; (c) "contact pins on the stem"; (d) "brushes supported adjacent the stem to form an electric circuit by contact with the pins"; and (e) "electrical means to rotate the valve step by step. * * *"

These elements are all present in Atherton, being disclosed in the drawings, as indicated by numerals, and the function of each member so indicated is specifically described in the specification. Thus the element (a) is a cylindrical member numbered 13 in the drawings; element (b) is numbered 15 and is referred to in the specification as "an operating stem"; of element (c) the specification says "a contact pin 36 is fixed in the stem 15 and extends radially and a similar contact pin 37 is fixed in the stem 15 and extends radially and diametrically opposite the pin 36 and is spaced longitudinally from the plane of the pin 36"; element (d) consists of "insulated spring brushes 38 and 39"; and element (e) comprises "a solenoid or plunger electromagnet" and means to connect it with the valve through a pawl.

Elements (a), (d), and (e) are conceded to be present in Payne, but, in behalf of Atherton, it is insisted that Payne does not disclose either element (b), "an operating stem," etc., or element (c), "contact pins on the stem."

The Board of Appeals held, in effect, that a certain shaft (numbered 24) in Payne's drawing is driven from a wheel (numbered 32) through screws (numbered 33), and that one of the figures demonstrates that the drive is also through a key (numbered 25), and said:

"* * * In the construction of each party all three parts, that is, the valve, the operating disk or wheel and the projecting stem which carries the contact members are rigidly united to form a unitary member. We see no patentable difference in the constructions and deem the claim in this respect readable on the Payne construction whether the shaft 24 alone or said shaft and the surrounding boss on the valve be regarded as the stem. * * *"

Upon the "contact pins" element, the Board said:

"An additional reason assigned by Atherton for denying the claim to Payne is that Payne does not have contact pins on the stem. No reason is seen for not regarding the rivets 71 as such contact pins. It is true they are not radial pins extending directly from the...