Van Auken v. Cummings

• Decision Date: 22 April 1931
• Docket Number: Patent Appeal No. 2690.
• Citation: 49 F.2d 490
• Parties: VAN AUKEN v. CUMMINGS.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

49 F.2d 490 (1931)

VAN AUKEN v. CUMMINGS.

Patent Appeal No. 2690.

Court of Customs and Patent Appeals.

April 22, 1931.

Walter H. Pumphrey, of New York City (John B. Brady, of Washington, D. C., of counsel), for appellant.

Harry E. Seidel, of Washington, D. C., for appellee.

Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.

LENROOT, Associate Judge.

This is an appeal from a decision of the Board of Appeals of the United States Patent Office in an interference proceeding. Said decision awarded priority of invention to appellee, reversing the decision of the Examiner of Interferences, who awarded priority of invention to appellant's assignor, hereinafter called the appellant.

The invention relates to a gauge for indicating the volume of gasoline in the fuel tank of an automobile. The issue is stated in three counts, which read as follows:

"1. In apparatus of the class described, a liquid holding tank, means forming an inclosed chamber, a connection for creating a partial vacuum in said chamber, means affording communication between said chamber and the liquid in said tank at the minimum level to be gaged whereby the liquid may be drawn into said chamber by the vacuum existing therein, a valve for regulating the degree of vacuum in said chamber, and means responsive to the rise of liquid in said chamber for controlling said valve.

"2. A liquid gage including a tank, a float chamber above the liquid level in the tank, a liquid conduit having its lower end submerged in the liquid in the tank and its other end in communication with the float chamber and providing a constant communication therebetween, a vacuum connection whereby a condition of low pressure may be set up in the chamber, causing flow of liquid from the tank through the conduit and into the float chamber, a float in the chamber means actuated in accordance with the position of the float for regulating pressure within the float chamber, and means controlled by the float chamber pressure for indicating the liquid level in the tank, substantially as described.

"3. An apparatus for indicating the height of liquid in a tank, comprising the combination, with a tank adapted to contain liquid, of a chamber smaller in horizontal area than the tank and extending upward and downward throughout the range of levels to be indicated, said chamber having a liquid connection with said tank at a low level relatively to said range of levels, a vacuum connection whereby a condition of low pressure may be set up in the chamber, means controlled by rise of liquid in said chamber for limiting the degree of vacuum possible to be obtained therein, an indicator operable by difference between internal and external fluid pressures, and means whereby said indicator is coupled with that part of said chamber in which a vacuum is thus produced."

Appellant filed his application on October 30, 1919, and the application of appellee was filed on March 22, 1922. Appellant is, therefore, the senior party, and the burden was upon appellee to establish priority of invention by a preponderance of evidence.

Appellant took no testimony, and he is accordingly restricted to his filing date for conception and reduction to practice.

Appellee took testimony, and established that on March 22, 1919, he filed an application in the Patent Office, which application disclosed the invention embodied in the counts here in issue. On December 6, 1920, the Primary Examiner held said application was abandoned on the ground that no full responsive amendment had been made within the period of one year from the office action of April 25, 1919.

Both tribunals of the Patent Office held that appellee was entitled to the filing date of his first application, March 22, 1919, for conception of the invention, but that such filing did not constitute a reduction to practice. No error is assigned upon the ruling giving appellee said date of March 22, 1919, for conception of the invention.

There are two questions before us for determination:

(1) Did appellee reduce the invention to practice prior to appellant's filing date?

(2) If the first question be determined in the negative, was appellee diligent in reducing the invention to practice at the time of appellant's filing date, and thereafter until he reduced to practice?

With regard to the first question, there is no corroboration of appellee's testimony that the invention was successfully operated by him prior to appellant's filing date, October 30, 1919.

The Board of Appeals found that the evidence established that the invention was successfully tested by appellee at least as early as June, 1920, that he was entitled to this date for reduction to practice, and that appellee was chargeable with diligence from just prior to October 30, 1919, appellant's filing date, to June, 1920.

As to appellee having reduced the invention to practice as early as June, 1920, this depends upon whether or not appellee's testimony to that effect was corroborated by the witnesses McEwen and appellee's brother.

The witness McEwen testified that appellee disclosed to him a gasoline gauge for automobiles in the early part of 1919; that "it was essentially a hydrostatic principle rather than a mechanical one, and for the balancing of pressure and making indications of pressure"; that he saw parts of the apparatus in the laboratory; that he saw the complete invention in use on a car and saw it work at various times throughout the year 1920; that the "visible part consisted of two glass tubes, exposed glass tubes, that were part of the manometer, contained liquid, partly filled with liquid."

With regard to the operation of the device, the witness testified as follows:

"* * * There were two manometer tubes, two glass tubes I suppose, one at a certain level, corresponding to the mark made, and then after a certain amount of gasoline had been used the liquid in the other tube would disappear and then return. There was a periodic pulsation corresponding to certain changes of level so that you could watch it, and, in fact, I did watch that, indicating that the level had changed...