Hatch v. Ooms, Civil Actions No. 29517

• Decision Date: 23 January 1947
• Docket Number: 29530.,Civil Actions No. 29517,29528
• Citation: 69 F. Supp. 788
• Parties: HATCH v. OOMS, Commissioner of Patents. DORSEY v. SAME. CARTER v. SAME.
• Court: U.S. District Court — District of Columbia

69 F. Supp. 788

HATCH v. OOMS, Commissioner of Patents.

DORSEY v. SAME.

CARTER v. SAME.

Civil Actions Nos. 29517, 29528, 29530.

District Court of the United States for the District of Columbia.

January 23, 1947.

COPYRIGHT MATERIAL OMITTED

Edgar J. Goodrich, of Washington, D. C., and Albert C. Hirsch, of Pittsburgh, Pa., for petitioner Roswell F. Hatch.

William E. Leahy, of Washington, D. C., for the petitioner Vernon M. Dorsey.

Covington, Burling, Rublee, Acheson & Shorb, Spencer Gordon, and Charles A. Horsky, all of Washington, D. C., for petitioner Henry W. Carter.

Jo. Bailey Brown, of Pittsburgh, Pa., and E. L. Reynolds, of Washington, D. C., for respondent.

MORRIS, Justice.

These proceedings were brought in this Court pursuant to Section 11, Title 35 U. S.C.A., and Rule 95, Title VIII of the Rules of this Court to review Orders Nos. 3937, 3938 and 3939 of Conway P. Coe, Commissioner of Patents, all dated May 18, 1945, disbarring from practice before the United States Patent Office for gross misconduct the petitioners Henry W. Carter, Vernon M. Dorsey and Roswell F. Hatch, respectively. The respondent in these proceedings here is the successor in office to the Commissioner of Patents whose action is sought to be reviewed. Upon motion of each petitioner, the order of disbarment was stayed by orders of this Court entered the 16th day of July 1945 pending review and final determination by this Court. By stipulation Volumes I, II and III of the printed record, containing testimony and printed exhibits, and numerous other exhibits, together with briefs of counsel, transcript of arguments of counsel, a photostat copy of report of Committee on Enrollment and Disbarment, opinion of Commissioner and copy of orders of disbarment were transmitted to this Court in lieu of a formally certified record of the proceedings in the Patent Office. Argument on the petitions for review commenced February 4, 1946, and consumed five days. Prior to arguments briefs for all parties were submitted and subsequent to the arguments a transcript thereof was received by the Court.

The proceedings in the Patent Office were initiated by a rule to show cause, directed to each of the petitioners, which read as follows:

"Whereas it was found by the Supreme Court of the United States in its decision in the case of Hazel-Atlas Glass Company v. Hartford-Empire Company, 1944, 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250, that fraud was practiced on the United States Patent Office during the prosecution of the patent application of Karl E. Peiler, No. 294792, which matured into patent No. 1,655,391 on January 3, 1928, which fraud consisted in the preparation and presentation to the United States Patent Office of an article entitled `Introduction of Automatic Glass Working Machinery; How Received by Organized Labor,' naming one William P. Clarke as the author, who in fact was not the author of said article, and

"Whereas it appears from said decision and the record of the case before the Supreme Court, and the record before the United States Circuit Court of Appeals, Third Circuit, in the case of Hartford-Empire Company v. Hazel-Atlas Glass Company, 137 F.2d 764, and the record before the District Court, Northern District of Ohio, West. Div., in the case of United States v. Hartford-Empire Company, 46 F.Supp. 541, and the records of the Patent Office, that you participated in the preparation of said article and/or the presentation thereof to the United States Patent Office during the prosecution of said patent application knowing that said article was not written by said William P. Clarke, and with the purpose of deceiving the Patent Office as to the authorship of said article and influencing the action of the Patent Office on said application; and that you thereby perpetrated or participated in the perpetration of a fraud on the United States Patent Office.

"Now therefore, you are hereby ordered to show cause on or before November 9, 1944 why, in view of the above, you should not be suspended or excluded from further practice before the United States Patent Office for gross misconduct.

"You are hereby notified that a hearing on this order to show cause will be accorded to you before the Committee on Enrollment and Disbarment of the United States Patent Office on November 9, 1944 in Room 1035 of the United States Patent Office in the Department of Commerce, 14th and E Streets, N.W., Washington, D.C., beginning at 10:00 A. M. on said date."

In addition to the three petitioners in these proceedings, who were designated as respondents in the proceedings in the Patent Office, there was another respondent, Robson D. Brown, who is now deceased.

A hearing was had before the Committee on Enrollment and Disbarment of the Patent Office, consisting of seven members, such hearing commencing November 21, 1944, and consuming five days with one night session. Each of the respondents were represented by counsel, excepting Mr. Vernon M. Dorsey, who appeared pro se. On March 27, 1945, oral argument was heard by the Committee, with Commissioner Conway P. Coe attending. The Committee, in its report to the Commissioner of Patents, dated April 26, 1945, which discussed much of the evidence in the case and set out many excerpts therefrom, stated (all members agreeing):

"As is clear from what has been stated in this report, it is our carefully considered opinion that the record made before us indubitably and conclusively shows and establishes that the respondents and each of them has been guilty of gross misconduct toward the Patent Office in connection with the so-called Clarke article, the most salient points of said misconduct being: First, the preparation and the presentation of the article to the Patent Office in such manner as to induce the Patent Office officials to believe that the article compared the commercial success of the specific invention of the Peiler application with the commercial success of the Owens machines, whereas, in truth, the comparison was of the commercial success of gob feeding machines in general — of which there were several types other than Peiler's — with the commercial success of the Owens machines; and, Secondly, the deliberate concealment from the Patent Office of the facts that (a) the so-called Clarke article was prepared by and on behalf of Hartford; (b) that the sponsorship of the article by Clarke and the notation thereon of Clarke's name as author was procured by and on behalf of Hartford, and (c) that the publication of the article in the National Glass Budget was procured by Hartford and on its behalf through Hatch. We hold and believe that in the perpetration of such concealment all of the respondents deliberately collaborated not only with each other but also directly or indirectly with Clarke, and that all of the respondents connived with each other with the intention of misleading and deceiving the officials of the Patent Office as to the true state of the said material facts concerning the connection of Hartford with the preparation and publishing of the article with Clarke's name appearing thereon as the author thereof, when in fact he was not the true author thereof, and all this for the purpose of securing favorable action by the Patent Office with respect to the claims in the Peiler application."

In its recommendation five members recommended disbarment and two members recommended that "respondents be not disbarred perpetually from practice before the Patent Office but that instead respondents and each of them be suspended from practice for a definite period of time, for instance, up to one year." The Commissioner of Patents on May 18, 1945, addressed the following memorandum opinion to all counsel and to Mr. Dorsey, who had appeared pro se:

"An order to show cause why he should not be disbarred from practice before the United States Patent Office was issued against each of the above named respondents. Answers were filed and a hearing had before the Committee on Enrollment and Disbarment of the Patent Office, at which time testimony and exhibits were introduced by the respondents. The Committee has made its report to me and in the report a majority of the Committee has recommended that all of the respondents be disbarred from practice before the Patent Office. A copy of the report is transmitted herewith.

"That a fraud was practiced on the Patent Office, as charged in the orders to show cause, was found by the Supreme Court of the United States in the case of Hazel-Atlas Company v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250, which was a suit to set aside the judgment of the Court of Appeals for the Third Circuit sustaining the validity of the Peiler patent No. 1,655,391, which was granted on the Peiler application referred to in the orders to show cause.

"In its Opinion in that case the Supreme Court said:

"`Here even if we consider nothing but Hartford's admission, we find a deliberately planned and carefully executed scheme to defraud not only the Patent Office but the Circuit Court of Appeals.'

"I have given careful consideration to the Committee's report and to the entire record made at the hearing and I am convinced that each of the above named respondents participated in the scheme to defraud the Patent Office, as was found by the Committee, and I approve the recommendation of the majority of the Committee, that each of the respondents be disbarred from further practice before the United States Patent Office. Orders of disbarment have this day been issued."

Each of the petitioners here assigned a great many errors, all of which have been carefully considered. It would enlarge this opinion beyond reasonable limits to undertake to deal separately with each of such assigned errors. I shall undertake to discuss such matters as have been pressed in the briefs and oral arguments which seem to me necessary in the proper disposition on review of these proceedings.

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