Kyrides v. Andersen, Patent Appeal No. 4491.
Citation | 121 F.2d 514 |
Decision Date | 02 July 1941 |
Docket Number | Patent Appeal No. 4491. |
Parties | KYRIDES v. ANDERSEN et al. |
Court | United States Court of Customs and Patent Appeals |
Joseph R. Mares and J. Russell Wilson, both of St. Louis, Mo. (James M. Graves, of Washington, D. C., of counsel), for appellant.
I. Seltzer and C. W. Levinson, both of New York City, for appellees.
Before GARRETT, Presiding Judge, and BLAND, HATFIELD, LENROOT, and JACKSON, Associate Judges.
This is an appeal in an interference proceeding from the decision of the Board of Appeals of the United States Patent Office affirming the decision of the Examiner of Interferences awarding priority of the invention defined in the single count in issue to appellees, Andersen, Grenquist, and Ball.
The invention relates to a composition embodying a cellulose derivative and an alkyl acetonyl phthalate which acts as a plasticizer of the cellulose derivative as stated in the count in issue.
The count reads:
It appears from the record that the function of the plasticizer — an alkyl acetonyl phthalate — is to render the composition more pliable.
The interference is between appellant's application No. 142,801, filed May 15, 1937, and appellees' application No. 111,594, filed November 19, 1936.
Appellant is the junior party and the burden was upon him to establish priority of invention by a preponderance of the evidence.
No evidence was submitted by either party. Appellant, however, gave due notice under the provisions of rule 154(e) of the Rules of Practice, 35 U.S.C.A. Appendix, in the United States Patent Office of his intention to rely upon an earlier copending application (No. 604,660), filed April 11, 1932, of which his involved application is a continuation in part, for conception and constructive reduction to practice of the invention defined by the count in issue. Accordingly, appellees are confined to their filing date, and the sole issue in the case is whether appellant disclosed the involved invention in his 1932 application. If he did, he is entitled to an award of priority, and the decision of the Board of Appeals should be reversed. If he did not, the decision of the board should be affirmed.
The tribunals of the Patent Office held, and it is conceded here by counsel for appellees, that appellant disclosed in his 1932 application, of which his involved application is a continuation in part, acetonyl ethyl phthalate, one of the alkyl acetonyl phthalates, for use as a plasticizer in a composition embodying a cellulose derivative.
The tribunals of the Patent Office concurred in holding that the disclosure in appellant's 1932 application of only one species of the alkyl acetonyl phthalates was not sufficient to warrant a holding that he was entitled to a constructive reduction to practice of the subgeneric class of alkyl acetonyl phthalates, and that as the filing date of his involved application is subsequent to the filing date of appellees' application, appellees were entitled to an award of priority of invention.
In its original decision, the Board of Appeals said, inter alia:
In its decision in reply to appellant's request for reconsideration of its original decision, the board said:
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