Klemperer v. Price, Special Patent Appeal No. 86.
| Decision Date | 02 November 1959 |
| Docket Number | Special Patent Appeal No. 86. |
| Citation | 47 CCPA 729,271 F.2d 743 |
| Parties | Wolfgang B. KLEMPERER v. Nathan C. PRICE. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Robert W. Beach, Seattle, Wash., for Nathan C. Price.
Before WORLEY, Chief Judge, and RICH, MARTIN and SMITH, Associate Judges.
This is a motion to dismiss a notice of appeal from a decision of the Board of Patent Interferences of the United States Patent Office.
The appellant, Nathan C. Price, was awarded priority by the board of all the subject matter in issue in Interference No. 87,334, the award being based on a holding that the disclosure of Klemperer's application would not support the interference counts. The board overruled a contention by Price that Klemperer was estopped to contest the interference, and further held that if Klemperer's disclosure supported the counts he was entitled to judgment on the ground of res judicata as the result of an earlier interference. However, in view of the holding that Klemperer's disclosure did not support the counts, the board's rulings as to estoppel and res judicata did not affect its award of priority.
The instant notice of appeal filed by Price, the winning party, assigns errors in the board's holdings as to estoppel and res judicata but, of course, does not allege error in the board's ultimate conclusion that Price was entitled to the award of priority.
Title 35, Section 141, of the United States Code provides for an appeal to this court by "A party to an interference dissatisfied with the decision of the board of patent interferences on the question of priority * * *." It is evident that Price is not dissatisfied with the decision of the board on priority. His dissatisfaction is merely with holdings of the board on other points not necessary to that decision.
In opposing the motion to dismiss, Price argues that unless he is allowed to maintain his appeal he may be precluded from urging his contentions as to estoppel and res judicata in the event of an appeal by Klemperer. It has been repeatedly held by this court, however, that all questions pertinent to the issue of priority of invention are before the court in considering an appeal from the Board of Patent Interferences and that it is not necessary for the successful party to an interference to file an appeal in order to preserve his right to argue any such question which has been decided adversely to him below. Braren v. Horner, 49 F.2d 984, 18 CCPA 1408; Fageol v. Midboe, 56 F.2d 867, 19 CCPA 1117; Chittick v. Lyons, 104 F.2d 818, 26 CCPA 1382; Driggs v. Clark, 140 F.2d 994, 31 CCPA 856; Draeger v. Bradley, 156 F.2d 64, 33 CCPA 1130, 1136; Botnen v. Dorman, 179 F.2d 249, 37 CCPA 813; St. Pierre v. Harvey, 233 F.2d 337, 43 CCPA 918.
The case of Field v. Knowles, 183 F.2d 593, 37 CCPA 1211, relied on by Price, is not in point...
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...ground and did not consider "other questions raised in the reasons of appeal." Augmenting the foregoing decision, see Klemperer v. Price, 271 F.2d 743, 47 CCPA 729, from which it is clear that in an interference we will consider any question, decided adversely to a successful party, on the ......
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