Melling v. Gordon Form Lathe Co.

• Decision Date: 26 August 1926
• Docket Number: No. 1626.,1626.
• Citation: 14 F.2d 437
• Parties: MELLING v. GORDON FORM LATHE CO.
• Court: U.S. District Court — Northern District of Ohio

14 F.2d 437 (1926)

MELLING v. GORDON FORM LATHE CO.

No. 1626.

District Court, N. D. Ohio, E. D.

August 26, 1926.

Chappell & Earl, of Kalamazoo, Mich., and Hull, Brock & West, of Cleveland, Ohio, for plaintiff.

Richey & Watts, of Cleveland, Ohio, and Bottum, Hudnall, Lecher & McNamara, of Milwaukee, Wis., for defendant.

WESTENHAVER, District Judge.

This is an action under section 4915, R. S. (Comp. St. § 9460), to compel the issue of a patent to plaintiff. The invention in controversy is embodied in patent 1,542,803, issued June 16, 1925, to the defendant, as assignee of the inventors and applicants, Charles Gordon and Alfred W. Redlin. The subject of the invention is certain improvements in forming lathes, designed and intended for the forming and turning of irregular or nongeometrical forms, particularly cam shafts of automobile engines.

The Gordon & Redlin application, on which defendant's patent issued, was filed July 19, 1920. Melling's application was filed October 13, 1920. An interference between those copending applications was declared, and three counts were formulated by the Primary Examiner to cover the common subject-matter of the two applications. Of these counts, the first, now claim 29 of said patent, was suggested by the Primary Examiner, and the second, now claim 2, and the third, now claim 28, of said patent, were adopted from the Gordon & Redlin application. After a prolonged controversy, including an appeal to the District of Columbia Court of Appeals, it was held and determined that Gordon and Redlin were prior inventors of the common subject-matter as embodied in said three counts, and the patent in question was passed to issue. See Melling v. Gordon, 55 App. D. C. 278, 4 F.(2d) 945.

The record in this cause, as well as in the Patent Office, is exceedingly voluminous. The contending parties were at all times represented by competent counsel. The controversy here, as well as in the Patent Office, was conducted with the utmost vigor, skill, and industry. Able and elaborate briefs covering all aspects of the controversy have been submitted. My best consideration has been given to all the questions of law and fact necessary to be considered and decided; but I shall, in this memorandum, state only my conclusions.

The record here is not distinguishable in any material respect from the record in the Patent Office. There is no question of priority of invention in the usual acceptation of that term. Gordon and Redlin had made their invention, reduced it to practice, and had constructed and put in operation a lathe embodying that invention, prior to Melling's first consideration of the subject. It is conceded that Melling began work after having first seen and examined a Gordon & Redlin turning lathe. In substance, plaintiff's contentions are that the Gordon & Redlin apparatus, as described in their specifications and illustrated in their drawings, is not an operative machine; that they were not entitled, on the basis of these disclosures, or of the apparatus constructed in conformity thereto, to make or have the claims embodied in the interference counts, for the reason that the patentable subject-matter thereof is disclosed only in Melling's application, and not by Gordon and Redlin; and, in the alternative, that, if the counts in interference are to be given a construction broad enough to read upon Gordon and Redlin, then all such counts were fully disclosed in the prior art, and are devoid of patentable novelty.

Melling moved to dissolve the interference upon these grounds, and all of the contentions now urged in support thereof were urged in the Patent Office and on appeal, and were fully considered by one or the other of the several officials or tribunals. All of these contentions,...