Bac v. Loomis

• Decision Date: 21 March 1958
• Docket Number: Patent Appeal No. 6299-6301.
• Citation: 45 CCPA 807,252 F.2d 571
• Parties: Fernand Georges BAC, Appellant, v. Alfred L. LOOMIS, Appellee. Andrew ALFORD, Appellant, v. Alfred L. LOOMIS, Appellee (two cases).
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

45 CCPA 807, 252 F.2d 571 (1958)

Fernand Georges BAC, Appellant, v. Alfred L. LOOMIS, Appellee.

Andrew ALFORD, Appellant, v. Alfred L. LOOMIS, Appellee (two cases).

Patent Appeal Nos. 6299-6301.

United States Court of Customs and Patent Appeals.

January 31, 1958.

Rehearing Denied March 21, 1958.

Ralph B. Stewart, Washington, D. C., (Edward D. Phinney and Rayson P. Morris, New York City, of counsel), for Bac.

Rayson P. Morris, New York City (Edward D. Phinney, New York City, and Ralph B. Stewart, Washington, D. C., of counsel), for Alford.

H. L. Godfrey, Michael W. Werth, and T. Hayward Brown, Washington, D. C., for Loomis.

Before JOHNSON, Chief Judge, and O'CONNELL, WORLEY, RICH, and JACKSON (retired), Judges.

WORLEY, Judge.

These appeals were taken from the decisions of the Board of Patent Interferences of the United States Patent Office, awarding priority of the subject matter in issue in interferences Nos. 84,143 and 85,626 to the junior party, Alfred L. Loomis. Both interferences involve an application of Loomis, No. 603,090, filed July 3, 1945, and patent No. 2,419,525, issued April 29, 1947, to Andrew Alford on an application filed October 8, 1942. Since the appeals involve the same parties, the same application and patent, and the same testimony, they will be considered in a single opinion.

The single count in issue in appeal No. 6300 is as follows:

"Count 1. A beacon system for determining the location of a craft comprising means for transmitting pulses of energy from a first pair of spaced points, the pulses transmitted from one of said points having a predetermined time relation with respect to the pulses transmitted from the other of said points, means for transmitting pulses of energy from a second pair of spaced points, the pulses transmitted from one of said second pair of points having a predetermined time relation with respect to the pulses transmitted from the other of said second pair of points, means for receiving the pulses transmitted from said points, and means responsive to said receiving means for measuring the relative propagation times of said pulses from said points to said receiving means whereby the location of said receiving means with respect to said points is determined."

The single count involved in appeal No. 6301 is as follows:

"Count 1. In a beacon system wherein course line indications are produced in a receiver by comparison of the relative timing of received pulses, a beacon for defining intersecting course lines comprising means for transmitting pulses of energy having predetermined time spacings from a plurality of first substantially fixed positions, means for transmitting pulses of energy from a plurality of second substantially fixed positions, the pulses transmitted from each second station being transmitted at predetermined time intervals after pulses transmitted from a first station and said time intervals being small in comparison to said time spacings, and means for varying said time intervals."

The appellant, Alford, did not take testimony and is accordingly restricted to his filing date, October 8, 1942, for conception and constructive reduction to practice. Appellee, Loomis, took testimony which was held by the board to establish conception as early as November 1, 1940, reduction to practice on November 15, 1942, and the continuous exercise of reasonable diligence from November 25, 1940, until the date of reduction to practice. Each of those holdings is challenged by appellant.

The subject matter at issue in each appeal is a system for determining the position of a craft by means of impulses emitted by radio transmitters, and involves the use of at least two pairs of such transmitters. The transmitters of each pair are synchronized in such a manner that they emit impulses at the same frequency, but with the impulses of one station lagging, by a predetermined interval, behind those of the other.

When the impulses of a pair of stations are received by a craft whose position is to be determined, the lag between them will differ from the predetermined lag fixed at the stations by a degree which is a function of the difference between the distances of the craft from the respective stations. That fact will enable the navigator of the craft to fix the location of one line through his position, since the locus of points having any specified difference in distance from the two stations is a hyperbola having its foci at the stations. By obtaining readings on sets of impulses from two pairs of stations the navigator may locate his position as lying on each of two hyperbolas, and hence at their intersection; thus definitely fixing the position.

Loomis claims to have conceived in September 1940 an idea which he described in his testimony as follows:

"With these ideas flowing together it came to me that better navigation than celestial navigation would be possible by sending out independent pulses from two or more stations, which could be synchronized by a monitor station, as we had synchronized the two crystal clocks at the laboratory, and that these signals could be picked up by an aeroplane or a vessel without disclosing their position. We also knew, of course, that cathode ray oscillographs could be built that could compare these signals to within a few microseconds.

"I recognized that two stations only gave a line of position and not a fix, but I was used to the fact that all celestial observations only give the lines of position, and I realized that, if a line of position could be obtained from two stations, a cross could be obtained from another pair of stations at an angle to the first pair of stations, similarly to celestial observation."

Loomis testified that he disclosed his idea as above described to Professor E. L. Bowles and Frank D. Lewis at least as early as November 1, 1940, and his testimony in that respect is corroborated by Bowles and Lewis. Although the witnesses testified largely from recollection after a lapse of more than twelve years, we agree with the board that their testimony is sufficient to establish that Loomis was in possession of the idea set forth in his testimony above quoted as early as November 1, 1940.

It will be noted that Loomis referred to the synchronization of the transmitting stations by means of a "monitor station," which he described as being a third station so located that it could receive the impulses from both transmitting stations. When those impulses were not properly synchronized, the operator at the monitor station was to advise one of the transmitter operators by telephone so that appropriate correction could be made.

Bowles testified that Loomis also disclosed to him "the possibility of one station being a slave and being under the control of the other." However, since neither Lewis nor Loomis mentions any such thought, and since Bowles admitted that "I cannot remember all the details. It is many years later," we do not consider the testimony sufficient to establish that the idea of operating one station as a slave station formed a part of Loomis' idea. In that connection it may be noted that the testimony shows that the first attempts to put the Loomis idea into practice involved the use of a separate monitor station and that the slave station idea appears to have been introduced later. The record does not show who first suggested that idea.

Loomis admittedly did not disclose his idea by means of detailed charts or diagrams, but the board found his disclosure to be sufficient to establish conception of the invention in issue since "all of the elements were old per se and were contemplated to function in a manner, except as arranged and for the purpose adequately described to the witnesses by Loomis, so that it was only necessary to order the elements built by specification and to assemble them in accordance with Loomis' scheme."

Although the holding that Loomis is entitled to a conception date as early as November 1, 1940, depends upon the accuracy of the statement just quoted, that statement is evidently merely an opinion since the board cited nothing specific in support thereof. Thus it is necessary for us to determine whether the board's conclusion is supported by the record. Before doing so, it may be noted that it seems strange that, as held by the board, a period of two years of reasonable diligence was necessary to reduce the invention to practice if nothing more was to be done than to order parts to specification and assemble them "in accordance with Loomis' scheme."

It is evident that the successful operation of the system in issue is dependent upon a very exact coordination of the impulses emitted by the transmitting stations since Loomis' witness, Fletcher G. Watson, testified that a reading of one microsecond corresponds to about 1,000 feet in fixing the position of a craft, and the witness Bowles indicated that it was necessary to fix the position within a quarter of a mile. Accordingly, an error of two or three microseconds in the transmission interval might well prevent the fixing of the position with the required degree of accuracy.

Loomis testified that two of the most accurate crystal clocks available at the time of his alleged conception of the invention would keep in synchronism "to within a few microseconds" for a period of three to five minutes, after which "a small manual adjustment" was required. Since the adjustment, as visualized by Loomis in 1940, was to be made as the result of information obtained by telephone from a monitoring station, it is clear that it would not take place instantly. Accordingly, the impulses would at best be accurate only within "a few microseconds," and might be in error still more during a period when adjustment was about to be made. It seems very doubtful, therefore, if the clocks available in 1940 could have functioned with the necessary degree of accuracy.

Loomis testified that in the fall of 1940 he was chairman of a research...