Fritz v. Hawn, Patent Appeal No. 2214.
| Citation | 17 CCPA 796,37 F.2d 430 |
| Decision Date | 03 March 1930 |
| Docket Number | Patent Appeal No. 2214. |
| Parties | FRITZ v. HAWN. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Frank E. Liverance, Jr., of Grand Rapids, Mich., and John Boyle, Jr., of Washington, D. C., for appellant.
Chappell & Earl, of Kalamazoo, Mich. (F. L. Chappell, of Kalamazoo, Mich., of counsel), for appellee.
Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
Philip Fritz, of Grand Rapids, Mich., presented his application to the Patent Office on May 18, 1925, for a patent on certain improvements in ice cream cabinets. On January 5, 1926, United States patent No. 1,568,216 was issued to him thereon.
On February 21, 1925, Harold A. Hawn filed his application, serial No. 10,778, for a similar invention. On March 6, 1926, an interference proceeding was instituted and declared between said patent and said application, and is one of the matters now involved here. The subject-matter of said interference is set forth in two counts, which are as follows:
Thereafter, on the 16th day of March, 1927, the case having been submitted to the Examiner of Interferences, a decision awarding priority to Hawn was rendered, which decision thereafter, on March 23, 1929, was affirmed by the Board of Appeals.
On January 19, 1926, Hawn presented another application for improvements in ice cream cabinets to the Patent Office, and thereafter, on March 6, 1928, an interference proceeding was instituted and declared between his said application and the patent to Philip Fritz, heretofore mentioned, No. 1,568,216. The subject-matter of this interference consisted of one count, which is as follows:
"In a construction of the class described, a cabinet having sides and ends and an elongated interior space in which ice cream holding containers are adapted to be placed, said space at its lower portion being in the form of an elongated relatively narrow rectangular well and at its upper portion being widened at both sides of the well whereby elongated spaces are left between ice cream containers placed in alinement in the well and the inner sides of the cabinet, and a plurality of refrigerant holding receptacles located end to end in each of said last mentioned spaces at each side of end above the well and adapted to be freely placed therein or removed therefrom."
Afterwards, the case having been submitted, the Examiner of Interferences awarded priority to Hawn, which decision, on appeal to the Board of Appeals, was reversed on March 23, 1928, and priority was awarded by said Board to Fritz.
Both interferences are now before us on appeal by the respective parties. It has been stipulated that the same record shall be used in both cases, the cases have been heard together, and the points in issue in both will be, therefore, fully discussed herein.
It will be observed, from what has been said, that priority has been awarded to Hawn upon counts covering ice cream cabinets with refrigerant holding receptacles to be located on one side of the ice cream containers to be placed in said cabinet, while priority is awarded to Fritz on similar cabinets with refrigerant holding receptacles to be placed on both sides of the ice cream containers.
The main and only controversy here is a question of fact as to the origin of the idea which finally led to the invention in question. The facts, as they appear from the record, are substantially as follows:
Philip Fritz is a man 70 years of age, has been engaged in manufacturing since 1882, at Grand Rapids, Mich., and about 28 years before the hearing herein began the manufacture of refrigerators. This business has increased from year to year, and at the time of hearing amounted to perhaps half a million dollars a year. Fritz, during his business experience, has had active charge of the business of his factory, and has made several inventions. From the record it is obvious that all details of the business were submitted to him and had his personal supervision. In 1923, when mechanical refrigeration began, he and his son, who was then engaged in business with him, together with others of the company, sold and manufactured to some extent mechanical or iceless refrigerators. He stated that in December, 1922, he first began to experiment with an ice cream cabinet similar to that here involved, and at that time built a cabinet.
Up to that time ice cream containers had been manufactured with the refrigerating material placed in the chamber with the containers and immediately surrounding them. The effort of Fritz was to produce a form of cabinet where the refrigeration might be applied through receptacles in the side or sides of the cabinet, which receptacles might be removed and filled elsewhere than in the place of business.
In 1924 and 1925 the Fritz company made and sold a considerable number of ice cream cabinets with a removable refrigerating tray placed between two ice cream containers in the cabinet. These trays were originally full length, but later were shortened and placed on a rack. In January, 1925, the Fritz company began to sell cabinets constructed according to the design embodied in patent No. 1,568,216, here involved, and, in 1925, 2,800 of these cabinets were sold by the company.
During this experimental stage, the party Hawn was employed by the Fritz company, being employed originally to introduce a system of cost accounting and production efficiency in the plant. His employment continued from March 24, 1919, to October 12, 1925. He had had some experience as a draftsman, and was the only person in the Fritz establishment who had had training along this line. The party Philip Fritz on many occasions made rough sketches, several of which are in evidence, on work which he desired to have done in his factory, but made no pretense of being able to make a finished drawing. The evidence shows that Hawn, from time to time, made drawings for the company, as requested by Mr. Fritz.
There is a sharp conflict in the evidence as regards the making of the drawing...
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Hedgewick v. Akers, Patent Appeal No. 9199.
...Ormsby, 154 F.2d 663, 33 CCPA 959 (1946). That burden is independent of the senior or junior party status of the parties. Fritz v. Hawn, 37 F.2d 430, 17 CCPA 796 (1930). Derivation is shown by a prior, complete conception of the claimed subject matter and communication of the complete conce......