Legille v. Dann

Citation178 U.S.App.D.C. 78,544 F.2d 1
Decision Date24 August 1976
Docket NumberNo. 74-1641,74-1641
Parties, 191 U.S.P.Q. 529 Edouard LEGILLE et al. v. C. Marshall DANN, Commissioner of Patents, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Jere W. Sears, Atty., Washington, D.C.., with whom Joseph F. Nakamura, Sol., Washington, D.C., was on the brief, for appellant.

David S. Fishman, of the bar of the Supreme Court of Connecticut, pro hac vice, by special leave of court, with whom Charles L. Fishman, Washington, D.C., was on the brief, for appellees.

Before FAHY, Senior Circuit Judge, and TAMM and ROBINSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBINSON.

Dissenting opinion filed by Senior Circuit Judge FAHY.


An application for a United States patent filed within twelve months after filing of an application for a foreign patent on the same invention is statutorily accorded the filing date of the foreign application and the effect thereof. 1 If, however, the interval between the filings exceeds twelve months, patent protection in the United States may not be available. 2 The practice of the Patent Office, unchallenged in this litigation, is to file the duplicating United States application upon receipt. 3

This appeal, by the Commissioner of Patents, brings to this court a controversy as to the filing date properly to be given four applications domestically mailed to the Patent Office in time for normal delivery before expiration of the twelve-month period but allegedly received thereafter. On cross-motions for summary judgment, the District Court, utilizing the familiar presumption of regularity of the mails, ruled in favor of the applicants. 4 Our examination of the record, however, discloses potential evidence capable of dispelling the presumption and generating an issue of fact as to the date on which the applications arrived. We accordingly reverse the judgment and remand the case for trial.


From affidavits submitted in support of the motions for summary judgment , we reconstruct the facts apparently undisputed. On March 1, 1973, appellees' attorney mailed from East Hartford, Connecticut, to the Patent Office in Washington, D. C., a package containing four patent applications. 5 Each of the applications had previously been filed in the Grand Duchy of Luxembourg, three on March 6, 1972, and the fourth on the following August 11. 6 The package was marked "Airmail," bore sufficient airmail postage and was properly addressed. Delivery of air mail from East Hartford to Washington at that time was normally two days. 7

The applications were date-stamped "March 8, 1973," by the Patent Office. 8 Each of the four applications was assigned that filing date on the ground that the stamped date was the date of receipt by the Patent Office. 9 If the action of the Patent Office is to stand, three of appellees' applications, on which Luxembourg patents had been granted, fail in this country. 10

Appellees petitioned the Commissioner of Patents to reassign the filing date. The petition was denied. 11 Appellees then sued in the District Court for a judgment directing the Commissioner to accord the applications a filing date not later than March 6, 1973. Both sides moved for summary judgment on the basis of the pleadings and affidavits respectively submitted. Not surprisingly, none of the affidavits reflected any direct evidence of the date on which the applications were actually delivered to the Patent Office. 12

The District Court correctly identified the central issue: "whether there exists a genuine issue of fact as to when these applications were received by the Patent Office." 13 By the court's appraisal, appellees' suit was "predicated upon the legal presumption that postal employees discharge their duties in a proper manner and that properly addressed, stamped and deposited mail is presumed to reach the addressee in due course and without unusual delay, unless evidence to the contrary is proven." 14 The court believed, however, that the Commissioner's position rested "primarily upon a presumption of procedural regularity based upon the normal manner, custom, practice and habit established for the handling of incoming mail at the Patent Office and upon the absence of evidence showing that the subject applications were not handled routinely in accordance with those established procedures." 15 On this analysis, the court "concluded that the presumption relied upon by the (Commissioner) is insufficient to overcome the strong presumption that mails, properly addressed, having fully prepaid postage, and deposited in the proper receptacles, will be received by the addressee in the ordinary course of the mails." 16 "This latter presumption," the court held, "can only be rebutted by proof of specific facts and not by invoking another presumption"; 17 "the negative evidence in this case detailing the manner, custom, practice and habit of handling incoming mail by the Patent Office fails to overcome or rebut the strong presumption that the applications were timely delivered in the regular course of the mails to the Patent Office." 18 In sum,

(appellees) rely upon the strong presumption of the regularity of the mails to show that, in the normal course of postal business, these applications would be delivered within two days from March 1, 1973. (The Commissioner) does not show nor offer to show by way of any positive evidence that the presumption is inapplicable in this case. On the contrary, he relies on negative evidence as to custom, habit and usual procedure to create a conflicting presumption that the agency's business and procedure were followed in this case. Under the circumstances of this case, this Court holds, as a matter of law, that this presumption is insufficient to rebut or overcome the presumption of the regularity of the mails. 19


Proof that mail matter is properly addressed, stamped and deposited in an appropriate receptacle has long been accepted as evidence of delivery to the addressee. 20 On proof of the foundation facts, innumerable cases recognize a presumption to that effect. 21 Some presume more specifically that the delivery occurred in due course of the mails. 22 The cases concede, however, that the presumption is rebuttable. 23 We think the District Court erred in adhering to the presumption in the face of the evidentiary showing which the Commissioner was prepared to make.

Rebuttable presumptions 24 are rules of law attaching to proven evidentiary facts certain procedural consequences as to the opponent's duty to come forward with other evidence. 25 In the instant case, the presumption would normally mean no more than that proof of proper airmailing of appellees' applications required a finding, in the absence of countervailing evidence, that they arrived at the Patent Office within the usual delivery time. 26 There is abundant authority undergirding the proposition that, as a presumption, it did not remain viable in the face of antithetical evidence. 27 As Dean Wigmore has explained, "the peculiar effect of a presumption 'of law' 28 (that is, the real presumption) is merely to invoke a rule of law compelling the (trier of fact) to reach a conclusion in the absence of evidence to the contrary from the opponent. If the opponent does offer evidence to the contrary (sufficient to satisfy the judge's requirement of some evidence), the presumption disappears as a rule of law, and the case is in the (factfinder's) hands free from any rule." 29 As more poetically the explanation has been put, "(p)resumptions . . . may be looked on as the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts." 30

We are aware of the fact that this view of presumptions the so-called "bursting bubble" theory 31 has not won universal acclaim. 32 Nonetheless, it is the prevailing view, to which jurists preponderantly have subscribed; 33 it is the view of the Supreme Court, 34 and of this court as well. 35 It is also the approach taken by the Model Code of Evidence 36 and, very importantly, by the newly-adopted Federal Rules of Evidence. 37 These considerations hardly leave us free to assume a contrary position. Beyond that, we perceive no legal or practical justification for preferring either of the two involved presumptions 38 over the other. 39 In light of the Commissioner's showing on the motions for summary judgment, then, we conclude that the District Court should have declined a summary disposition in favor of a trial.


Conservatively estimated, the Patent Office receives through the mails an average of at least 100,000 items per month 40 The procedures utilized for the handling of that volume of mail were meticulously described in an affidavit by an official of the Patent Office, whose principal duties included superintendence of incoming mail. 41 Ordinary mail other than special delivery, registered and certified arrives at the Patent Office in bags, which are date-marked if the items contained were placed by the postal service in the Patent Office pouch earlier than the date of delivery of the bags. 42 A number of readers 43 open the wrappers, compare the contents against any included listing such as a letter of transmittal or a return postcard and note any discrepancy, and apply to at least the principal included paper a stamp recording thereon the receipt date 44 and the reader's identification number. 45 Another employee then applies to the separate papers the official mail-room stamp, which likewise records the date; 46 the two stamps are used in order to minimize the chance of error. The date recorded in each instance is the date on which the Patent Office actually receives the particular bag of mail, or a previous date when the bag is so marked. 47 From every indication, the affidavit avers, appellees' applications were not delivered to the Patent Office until ...

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