Clement v. McQuarrie

• Decision Date: 06 February 1922
• Docket Number: 1464.
• Citation: 278 F. 587
• Parties: CLEMENT v. McQUARRIE et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

278 F. 587

CLEMENT v. McQUARRIE et al.

No. 1464.

United States Court of Appeals, District of Columbia.

February 6, 1922

Submitted January 10, 1922.

Horace A. Dodge, of Washington, D.C., and William G. McKnight, of New York City, for appellant.

J. G Roberts and G. Willard Rich, both of New York City, for appellees.

SMYTH Chief Justice.

Clement complains of a decision of the Commissioner of Patents in an interference proceeding involving semi-automatic telephone systems. The issue consists of 28 counts, of which the following are examples:

1. In a telephone exchange system, the combination with a number of operators' connecting circuits, of mechanical line switching mechanism for each connecting circuit adapted to connect said circuit with the desired line, a controller for operating any one of said mechanisms, means for associating said controller with any one of said connecting circuits to operate its individual switching mechanism, and means actuated when said controller is taken for use by one connecting circuit for automatically locking out the other circuits therefrom.

2. The combination with a plurality of connecting circuits, of switching mechanism associated therewith, a sending device said circuits being all normally in operative relation to said sending device, and electromagnetic means operated when said sending device is taken for use by one circuit for removing the remaining circuits from operative relation to said sending device.

13. The combination with a plurality of connecting circuits of switching mechanism associated therewith, a series of sending mechanisms, and means whereby the first idle sending mechanism of the series may be automatically associated with any one of said circuits.

14. The combination with a number of connecting circuits, of a mechanical line switching mechanism for each circuit, a series of sending mechanisms, and means whereby the first idle sending mechanism may be automatically associated with any one of said circuits taken for use.

There are two applications of McQuarrie and Bullard's, and one of Clement's. McQuarrie and Bullard's first was filed September 27, 1906, and the second, February 5, 1907. It is conceded that Clement is entitled to March 15, 1906, as the date of his conception and constructive reduction to practice. The three tribunals of the Patent Office found against Clement. He cannot prevail here unless he establishes clearly and convincingly that the Commissioner was wrong. Chalman v. De Voe, . . . App. D.C. . . ., 278 F 585, this day decided. Clement took no testimony, but stood on the date just mentioned. He challenges the correctness of the Commissioner's decision upon two grounds, namely: (a) That McQuarrie and Bullard failed to establish joint conception prior to his date; and (b) that, if they did establish it, they were not diligent when he came into the field.

The first contention is technical, and is not favored by the law. Sieber & Trussel Manufacturing Co. v. Chicago Binder & File Co. (C.C.) 177 F. 439; De Laski & Thropp Circular Woven Tire Co.

v. William R. Thropp & Sons Co. (D.C.) 218 F. 458; Selectasine Patents Co. v. Prest-O-Graph Co. (D.C.) 267 F. 840.

There is a presumption of joint invention flowing from the filing of a joint application which cannot be overcome except by clear and unequivocal evidence. Consolidated Bunging Apparatus Co. v. Woerle (C.C.) 29 F. 449; Selectasine Patents Co. v. Prest-O-Graph Co., supra; Lemp v....