Hartog v. Long, Patent Appeal No. 2610.

• Citation: 47 F.2d 369
• Decision Date: 25 February 1931
• Docket Number: Patent Appeal No. 2610.
• Parties: HARTOG v. LONG.
• Court: United States Court of Customs and Patent Appeals

47 F.2d 369 (1931)

HARTOG v. LONG.

Patent Appeal No. 2610.

Court of Customs and Patent Appeals.

February 25, 1931.

Wm. L. Symons, of Washington, D. C. (Bacon & Thomas, of Washington, D. C., and Rippy & Kingsland, of St. Louis, Mo., of counsel), for appellant.

Swan & Frye, of Detroit, Mich. (Wm. M. Swan and Geo. Rex Frye, both of Detroit, Mich., of counsel), for appellee.

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

GRAHAM, Presiding Judge.

On August 13, 1919, the appellee, Elmer C. Long, filed his application, serial No. 317,273, for an improvement in pistons for internal combustion engines. On February 16, 1920, the appellant, Stephen D. Hartog, filed a like application for patent, serial No. 359,137. On July 7, 1923, an interference proceeding was instituted and declared between said copending applications and other applications.

As originally framed, this interference had but a single count herein known as count 1. Thereafter, said interference had consolidated with it an interference No. 49,581, which originally was set up with but a single count and which now constitutes count 2 of this interference. This interference was based on an application by Long, serial No. 281,175, of March 7, 1919. By a subsequent action of the Patent Office, interference Nos. 49,581 and 49,585 had been consolidated, the latter having also but a single count, which constitutes count 3 of the present interference, and which was also based upon the present application of Long of August 13, 1919. It will thus be seen that the three counts are taken from three separate interference proceedings, but which are between the same parties, and with closely related subject-matter.

On a hearing of this interference, after the taking of testimony, the Examiner of Interferences awarded priority on all counts to Long, the senior party. On appeal to the Board of Appeals, priority was awarded to the junior party Hartog as to count 1, while the decision of the Examiner as to counts 2 and 3 was affirmed. Hartog has appealed from that decision.

It is conceded by the parties that the sole and only question here is as to the priority of conception and disclosure of the parties of the invention, as set out in counts 2 and 3 of the interference.

We had one branch of this litigation before us in Jardine v. Hartog, 36 F.(2d) 606, 17 C. C. P. A. 764, where the decision of the Commissioner of Patents awarded priority to the party Hartog on counts which were as follows:

"Count 1. In a piston of the class described, a cup-like head comprising a pressure receiving end and a wall portion, a skirt circumferentially disconnected from the wall portion of the head and divided from end to end, and skirt carriers connecting said skirt to the pressure receiving end, said skirt carriers being disconnected from the wall portion of the head and susceptible of being slightly flexed radially.

"Count 2. A piston comprising a head, a skirt having resilient sections separated from said head by a slit extending continuously around the piston, and means for yieldingly connecting said skirt sections with said head."

The record made by Hartog, in that interference, is identical with the record filed in this interference. Although the counts therein are confined to the device which is the subject-matter of count 3 of this interference, there is no evidence in that record which leads to any different conclusion of facts here on either counts 2 or 3. In the case cited, we held that Hartog conceived and disclosed the invention to others "as early as December 1918; that neither party had reduced the invention to practice prior to the filing of their respective applications." Inasmuch as no other or different record is here...