Melling v. Gordon

• Decision Date: 06 April 1925
• Docket Number: No. 1727.,1727.
• Citation: 55 App. DC 278,4 F.2d 945
• Parties: MELLING v. GORDON et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

55 App. DC 278, 4 F.2d 945 (1925)

MELLING v. GORDON et al.

No. 1727.

Court of Appeals of District of Columbia.

Submitted March 10, 1925.

Decided April 6, 1925.

F. L. Chappell and O. A. Earl, both of Kalamazoo, Mich., for appellant.

W. G. Henderson, of Washington, D. C., and E. H. Bottum and J. W. Michael, both of Milwaukee, Wis., for appellees.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

VAN ORSDEL, Associate Justice.

This appeal is from the decision of the Commissioner of Patents, awarding priority of invention to appellees, Gordon and Redlin. The issue is in 3 counts, described in the opinion of the Examiner in Chief as follows:

"The subject-matter of the interference is a lathe for turning irregular forms, specifically the cam shafts of automobile engines. In the embodiment of invention disclosed in the Melling application involved in interference, the cutter is carried by a swinging lever mounted on a reciprocating carriage, movable in a plant transverse to the longitudinal axis of the work holder. This movement is controlled by a pattern cam, which is a replica of the cam to be formed by the cutter, both as to size and outline. The movement of the cutter-carrying lever is controlled by an additional cam. In the Gordon and Redlin machine, disclosed in the application involved in interference, the main cutter-carrying member is a swinging cam-controlled lever. The cam which moves the lever towards the work is not a replica of the cam to be formed. The movement of the cutter carrier proper is controlled by a second cam-actuated lever having a segmental rack engaging teeth on the cutter carrier and moving the cutter in an arc as the formation of the cam progresses."

The testimony discloses that there is no case of priority of invention here presented. Melling admits that he took no steps toward making the invention until after he had seen, at the factory of the Jackson Motor Shaft Company, in Jackson, Mich., a Gordon and Redlin machine, which was constructed in accordance with the disclosure of their application involved in this interference. Indeed, Melling admits that all dates named in his preliminary statement are subsequent to the time when he saw the Gordon and Redlin machine.

Melling, however, moved to dissolve the interference on two grounds: First, that Gordon and Redlin had no right to make the counts of the interference; second, on the ground that the issue is unpatentable in view of the prior art. On...