Guettler v. Alfsen

• Decision Date: 07 May 1923
• Docket Number: 1572.
• Citation: 289 F. 613
• Parties: GUETTLER v. ALFSEN.
• Court: U.S. Court of Appeals — District of Columbia Circuit

289 F. 613

GUETTLER v. ALFSEN.

No. 1572.

United States Court of Appeals, District of Columbia.

May 7, 1923

Submitted March 13, 1923.

Charles A. Brown, Charles C. Bulkley, and Arthur H. Boettcher, all of Chicago, Ill., for appellant.

Harry L. Duncan, of Ridgewood, N.J., for appellee.

Before SMYTH, Chief Justice, and ROBB and VAN ORSDEL, Associate justices.

VAN ORSDEL, Associate Justice.

This is an appeal in an interference proceeding from the decision of the Commissioner of Patents awarding priority of invention to the junior party Alfsen. Appellant Guettler filed his application June 4, 1915, and Alfsen filed September 9, 1915.

It is unnecessary to consider the invention in issue, since the case can be disposed of upon a single question of law. The tribunals below awarded Alfsen priority upon a Norwegian application, filed February 16, 1915. The only evidence of the existence of the alleged application, consists in a specification and drawing to which is attached the following certificate:

'Certificate.

'The Norwegian Patent Office hereby certifies that the annexed specification and drawing are in due conformity with the original specification and drawing which accompanied the patent application No. 7411, filed by Adolf August Alfsen engineer, of Christiania, on the 16th day of February 1915.

'Christiania, the 20th of June, 1918.

'By authority:

'(Seal Norwegian Patent Office.)

Karl Husberg, 'Secretary of the Patent Office.

'Examined and legalized.

Minister of Foreign Affairs.

'Christiania, the 21st day of June, 1918.

'For the Secretary General:

'(Seal Norwegian Foreign Office.)

Sigurd Bentzen.'

This does not certify that the specification and drawing is a correct and exact copy of the original Norwegian application. Whether or not one thing is in due conformity with another is a question of fact, to be established either by comparison or extraneous proof. We have no facilities for comparison, and no proof, aside from the certificate, was offered to prove that the application in interference is an exact copy of the original application, yet the burden is upon Alfsen, the junior party.

The rule governing the certification of documents, to render them admissible as proof of record facts, is well settled. As the court said in United States Slicing Machine Co. v. Wolf, Sayer & Heller, Inc. (D.C.) 243 F. 412:

'The general governing rule is that the official certification of a fact drawn or gathered from a public record is a mere legal conclusion, or the opinion of the certifying officer, and so not admissible as evidence. He should copy the record verbatim, certifying that he has done so, and that the copy is an accurate transcript of the original. Wigmore, Secs. 2162, 2165; Mandel v. Swan Land Co., 154 Ill. 177, 40 N.E. 462, 27 L.R.A. 313, 45 Am.St.Rep. 124; People ex rel. v. Lee, 112 Ill. 113, 1 N.E. 471; Greer v. Ferguson, 104 Ga. 552, 30 S.E. 943; Hudkins v. Bush, 69 W.Va. 194, 71 S.E. 106, Ann. Cas. 1913A, 533.'

The New Standard Dictionary defines 'conformity' as:

'Correspondence in form, manner, or use; agreement; harmony; congruity.'

Examples of use are given as:

'Conformity with...