Sellner v. Solloway

• Decision Date: 22 May 1959
• Docket Number: Patent Appeal No. 6437.
• Citation: 267 F.2d 321
• Parties: John W. SELLNER, Appellant, v. Harry SOLLOWAY and Michael Goodman, Appellees.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

267 F.2d 321 (1959)

John W. SELLNER, Appellant, v. Harry SOLLOWAY and Michael Goodman, Appellees.

Patent Appeal No. 6437.

United States Court of Customs and Patent Appeals.

May 22, 1959.

I. Louis Wolk, Los Angeles, Cal. (Ben Cohen, Washington, D. C., of counsel), for appellant.

Hamer H. Jamieson, Los Angeles, Cal. (Leo A. Rosetta, Washington, D. C., of counsel), for appellees.

Before WORLEY, Acting Chief Judge, and RICH, MARTIN and JOHNSON (retired), Associate Judges.

WORLEY, Chief Judge.

This is an appeal from the decision of the Board of Patent Interferences of the United States Patent Office awarding priority of invention of the subject matter of count 1 of Interference No. 88,049 to the junior party, Solloway and Goodman.

The invention is a combination chair and exerciser comprising a body-supporting frame of seat and back portions pivotally connected with means for supporting the frame comprising two generally U-shaped members located at each side of said frame, with the upper ends of the legs of the members pivotally connected to the seat and back portions respectively. The arrangement is such that the pivotal connections between the portions of the frame may lie below the lines joining the connections with U-shaped member, thus forming a chair, or above such lines to form an inverted V-shaped support so that the user's body will be bent backwardly with respect to his legs. In the intermediate position, with the pivotal connections in alignment, a flat supporting surface is provided.

When the device is used as an exerciser it moves from one to another of the positions above described, in accordance with the position assumed by the body of the person performing the exercises. The U-shaped members are sufficiently resilient to permit the required movement of the body-supporting portions.

The count reads:

"1. In combination, a body supporting frame consisting of two sections pivotally interconnected at the center of the frame, studs downwardly projecting from the side edges of the two sections intermediate the ends thereof, and two U-shaped supporting brackets, each bracket including a base member and legs rising from the end thereof, the upper ends of the legs of each bracket being pivotally mounted on the studs at one side edge of the frame, the two frame sections having freedom of relative swinging movement on their pivotal interconnection and on the pivotal connection with the upper ends of the legs."

Appellant is involved in the interference on patent No. 2,724,428, granted November 22, 1955, on an application filed May 20, 1954, while appellees' application was filed January 30, 1956, after issuance of appellant's patent. However, appellees' application is a continuation, so far as the subject matter of count 1 is concerned, of an application filed April 4, 1955, and was thus copending with the application on which appellant's patent was granted. Accordingly, appellees have the burden of proving priority by only a preponderance of the evidence rather than beyond a reasonable doubt. Sloan v. Peterson, 129 F.2d 330, 29 CCPA 1055.

Appellant did not take testimony and is accordingly restricted to his filing date of May 20, 1954, for conception and reduction to practice.

Appellees introduced as their Exhibit A a device so constructed as to satisfy the requirements of the count. Two witnesses, Mrs. Irene Barber and Alexander F. Borisoff, testified that they saw Exhibit A at a birthday party for Solloway February 23, 1950. While the witnesses did not remember every structural detail of the device they saw at that time, we agree with the board that their testimony is sufficient to establish that what they saw was Exhibit A. The testimony of Borisoff is especially convincing on that point since he stated that he saw the chair at Solloway's apartment many times between February 1950 and some time in 1952 when Solloway moved to a house of his own. Appellees, therefore, have established conception of the invention at least as early as February 23, 1950, and were thus the first to conceive.

The board held that Exhibit A was sufficiently tested on February 23, 1950, to effect a reduction to practice. If the evidence of record supports that holding then appellees were properly awarded priority as being the first to conceive and reduce to practice.

The board appears to rely rather heavily on the following testimony of Mrs. Barber and Mr. Borisoff.

Mrs. Barber stated:

"* * * it fit into the small of my

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