Kear v. Roder

• Decision Date: 03 February 1941
• Docket Number: Patent Appeal No. 4375.
• Citation: 115 F.2d 810
• Parties: KEAR v. RODER.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

115 F.2d 810 (1940)

KEAR v. RODER.

Patent Appeal No. 4375.

Court of Customs and Patent Appeals.

December 9, 1940.

Rehearing Denied February 3, 1941.

J. F. Mothershead, of Washington, D. C. (Paul P. Stoutenburgh and Samuel Scrivener, Jr., both of Washington, D. C., of counsel), for appellant.

Harry E. Dunham, of Schenectady, N. Y. (Merton D. Morse, of Schenectady, N. Y., and A. D. Salinger, of Boston, Mass., of counsel), for appellee.

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

LENROOT, Associate Judge.

This appeal brings before us for review a decision of the Board of Appeals of the United States Patent Office in an interference proceeding awarding to appellee Roder priority of invention with respect to all of the counts forming the issue of the interference. This decision of the board reversed the decision of the Examiner of Interferences, who had awarded priority as to all counts to the party Kear.

The issue consists of four counts, of which count 1 is illustrative and reads as follows: "1. The combination, in a directive radiation system, comprising a plurality of spaced radiators, of means to maintain constant the field pattern produced by said radiators, said means comprising a common source of oscillations, transmission lines extending from said common source to each of said radiators, and means continuously effective to maintain the current in each radiator in constant phase relation with respect to the voltage produced by said source."

The interference arises between an application of appellant Kear, Serial No. 696,209, filed November 1, 1933, and an application of appellee Roder, Serial No. 668,595, filed April 29, 1933. The party Kear, being the junior party, has the burden of proving priority of invention by a preponderance of the evidence.

As originally declared the interference contained five counts. Subsequently each of the parties hereto filed motions to dissolve the interference, and in addition appellant Kear filed a motion to add four new proposed counts under Rule 109. In proceedings dealing with these motions all of the original counts except count 2 were eliminated from the interference and Kear's proposed 7th, 8th and 9th counts were added thereto. These four counts were renumbered 1, 2, 3 and 4 and are the counts before us.

Appellant took testimony to establish priority of invention, while appellee relied upon his filing date, April 29, 1933.

The invention in issue relates principally to radio beacons as used for the guidance of airplanes, and specifically to the type using four antennae, one at each of the four corners of a square. Each pair of diagonally opposite antennae are connected to the same transmitter, but the antennae constituting such pair are energized in opposite phase relation. The space pattern resulting from such a condition is in the form of a figure 8, and the axis of the figure 8 pattern resulting from one pair of diagonally opposite antennae intersects the axis of the pattern resulting from the remaining pair of diagonally opposite antennae at right angles. There thus result four separate courses from such a system of radiators or antennae, such courses bisecting the angles between adjacent antennae. In order for these courses to remain fixed geographically, it is essential that the phase relation and amplitude of the currents energizing the separate antennae be maintained in a fixed relation to the voltage impressed, and accordingly the phase relation of the various antennae currents with respect to each other is maintained. It appears that there are a number of variables, such as weather conditions, which operate to disturb this relation, and the object of the invention here in issue is to provide means whereby to counteract the effect of such variables so that the desired phase conditions may be maintained in the antennae regardless of such influences.

Appellant seeks to accomplish this by using transmission lines between each of his antennae and the source of supply which are 90° or 180° in electrical length, it appearing that the current in the end of such a transmission line is automatically maintained in constant phase and amplitude.

Appellee's approach to the solution of this problem involves the use of transmission lines of no necessarily fixed electrical length; his method is to detune each antenna so that the current in such antenna is displaced from the voltage induced in the antenna by an amount equal to the electrical length of the transmission line supplying such antenna with energy, it being our understanding that by such a method the phase relation of the current in the various antennae can likewise be maintained constant.

It may be added that in such systems of radio beacons, the radiation produced by one pair of diagonally opposite antennae is modulated to be distinguishable from the radiation emanating from the other pair of antennae, and that, when the system is properly adjusted, at points along a line midway of the axes of the separate figure 8 patterns the signals from the separate antennae will be received with equal intensity, such line constituting the equi-signal zone.

Apparently both parties filed preliminary statements, but only the statement of appellant is contained in the record. As hereinbefore stated, appellant took testimony while appellee did not. Appellee, being the senior party, relies upon his filing date, April 29, 1933, for conception and constructive reduction to practice of the invention.

The examiner awarded priority to appellant, holding that he had established conception of the invention at least as early as July 1, 1932, and actual reduction to practice as early as October, 1932.

Upon review of this decision the Board of Appeals reversed the decision of the Examiner of Interferences and awarded priority of invention to appellee. In arriving at this decision the board did not question the finding of the Examiner of Interferences that appellant was entitled to a date as early as July 1932 for conception of the invention, but held that appellant had not established reduction to practice prior to appellee's filing date, and had not established diligence in reducing the invention to practice.

From this decision appellant took the appeal before us.

At the outset we would observe that before the Patent Office tribunals it was claimed that appellee derived the invention from appellant. Both the Examiner of Interferences and the Board of Appeals decided this question adversely to appellant, and as this question is not raised by appellant's reasons of appeal, nor argued in his brief before us, it will not be considered by us.

In appellant's brief it is stated:

"The only ground upon which the Board of Appeals reversed the Examiner of Interferences is contained in the following quotation from their decision of August 9, 1939, (r. p. 259) as follows:

"`The party Kear and perhaps the witness Diamond may have been fully convinced that the system would necessarily function properly in actual operation and it may be that the information that they possessed justified this belief. We are of the opinion, however, that the record does not clearly show what would occur in actual use. It is believed, in a system of the type here under consideration, conditions may be such in actual operation as to render substantially useless a system which may have been found entirely satisfactory under test conditions which were of a somewhat different nature.'"

This statement of appellant is inaccurate in that the board also reversed the decision of the examiner upon another ground, viz., that the testimony of appellant respecting certain tests relied upon for reduction to practice was not sufficiently corroborated.

It appears from the evidence that appellant is an electrical engineer of high standing, and that in 1932 he was employed in the National Bureau of Standards, Aeronautics Research Division; that under the direction of one Harry Diamond, who was in charge of a group working on the development of radio aids to air navigation, appellant in 1932 undertook a study of the subject matter of the involved invention, much of which consisted of preliminary mathematical investigations; that he conducted many experiments at a laboratory maintained by the Bureau of Standards at College Park, Maryland; that by the latter part of June, 1932, he had conceived the involved invention and had disclosed it to said Diamond. Appellant's testimony in this regard was clearly corroborated by Diamond. Immediately thereafter, construction of certain equipment to test the invention was begun, and one Harold Horsman, a mechanic employed at said laboratory, was assigned to do the mechanical work of securing the desired apparatus, under the direction of appellant.

Appellant testified that apparatus embodying the invention was installed in June, 1932, and that between that time and the following October many tests were made; that in October equipment installed and operated in accordance with appellant's original conception and disclosure was repeatedly tested with satisfactory results.

It is these October tests that appellant relies upon for actual reduction to practice of the invention.

It appears from the testimony that appellant kept a note-book in which he entered, from time to time as tests were made, data concerning his work upon the invention; weekly time cards were also filed by appellant with the Bureau of Standards upon which was noted the work done by appellant on each working day of the week. Photostats of the entries in the note-book and the original time cards filed by appellant were introduced in evidence.

There were also introduced in evidence photostats and printed copies of official reports made by appellant concerning the invention. One of these, Kear's Exhibit 17, is a publication entitled "Air Commerce Bulletin," issued on December 1, 1932, by the United States Department of...