Townsend v. Smith, Patent Appeal No. 2179.
| Decision Date | 19 December 1929 |
| Docket Number | Patent Appeal No. 2179. |
| Citation | 36 F.2d 292 |
| Parties | TOWNSEND v. SMITH. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Arthur B. Jenkins, of Hartford, Conn. (Melville Church and Clarence B. Des Jardins, both of Washington, D. C., of counsel), for appellant.
Harry R. Williams, of Hartford, Conn. (Oscar W. Jeffery, of New York City, of counsel), for appellee.
Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
Harry P. Townsend, the appellant, presented his application to the Patent Office on January 13, 1922, praying that a patent might be issued to him on improvements in machines for cutting multiple threads on wood screws. On December 8, 1924, an interference proceeding was instituted and declared between his application and a patent issued to one Henry L. Smith, the appellee, No. 1,452,986, granted April 24, 1923, for a similar invention. The interference counts are seven in number, and are as follows:
The Examiner of Interferences rendered a decision awarding priority of invention to said Townsend on July 10, 1926. On appeal, the Board of Examiners in Chief rendered a decision on April 15, 1927, reversing the said decision of the Examiner of Interferences, and which decision of said board was afterward, on December 7, 1927, affirmed by the Commissioner of Patents. From the decision of said Commissioner this appeal was perfected.
The sole question at issue in this case is the question of priority as between the appellant and appellee. Townsend claims to have conceived the idea of his invention on or about June 1, 1921. The Examiner of Interferences found that he had done so, while the Board of Examiners in Chief and the Commissioner of Patents, respectively, held that he had not proved such conception by such clear and convincing evidence as is required in such cases.
As both applications were co-pending at the time of the inadvertent issuance of the patent to appellee, and as but a short time intervened between the respective dates of application, the burden upon the appellant to prove prior conception is slight, and it is sufficient if he establish his case by a mere preponderance of the evidence. Having this rule, which we consider to be a reasonable one, in mind, we have examined the record carefully to ascertain what the facts are in this regard. The three tribunals in the Patent Office differing in their views as to what this evidence shows, the rule does not obtain here that obtains where all the tribunals agree, namely, that it must clearly and affirmatively appear that there has been some oversight, or mistake, or wrong construction of material facts, or some mistake or misapplication of some controlling principle of law, to justify this court in reversing the decision appealed from. Hien v. Buhoup, 11 App. D. C. 293; Kennicott v. Caps, 49 App. D. C. 187, 262 F. 641; Greenawalt v. Dwight (App. D. C.) 258 F. 982.
Townsend testifies that, while building wood screw threaders for the Ewing Bolt & Screw Company, on or about June 1, 1921, there was trouble with one of his screw threading machines. Townsend was an experienced builder of such machines, and understood them thoroughly at that time. He states that one of the gears had been cut with the wrong number of teeth, with the result that the threading tool, on the moment of initiating each cut on the screw blank, did not start in the same spot that it formerly did, and made a new mark each time the tool passed over the screw. He conceived the idea at the time, and mentioned it to the workmen around him, that this was the way to make a double threaded screw. At that time he was well acquainted with the Caldwell invention of double threaded wood screws. He says he explained it to two workmen, Pond and Clark, but that these men did not recollect it, except Clark recollected that some of the gears were cut wrong. He changed the machine at that time, putting...
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