Weeks v. Warp
| Citation | 221 F.2d 108 |
| Decision Date | 31 March 1955 |
| Docket Number | No. 12446.,12446. |
| Parties | Sinclair WEEKS, Secretary of Commerce, and Robert C. Watson, Commissioner of Patents, Appellants, v. Harold WARP, and Flex-O-Glass, an Illinois corporation, Appellees. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. E. L. Reynolds, Solicitor, United States Patent Office, Washington, D. C., with whom Mr. Joseph Schimmel, Washington, D. C., Attorney, United States Patent Office, was on the brief, for appellants.
Mr. William J. Stellman, Chicago, Ill., of the bar of the Supreme Court of Illinois, pro hac vice, by special leave of Court, with whom Mr. Francis C. Browne, Washington, D. C., was on the brief, for appellees. Mr. William E. Schuyler, Jr., Washington, D. C., entered an appearance for appellees.
Before FAHY, WASHINGTON and BASTIAN, Circuit Judges.
This appeal is taken in a suit under Revised Statutes, Sec. 4915 (1875) as amended,1 to obtain issuance of a patent.
On May 7, 1940, plaintiff (appellee) Warp filed two applications with the United States Patent Office for patents relating to laminated flexible transparent material. These applications resulted in a rejection of the claims in both patents, with the exception of one claim in one application, by the tribunals of the Patent Office on the ground of unpatentability over prior patents. The cases were appealed to the United States Court of Customs and Patent Appeals and, on March 4, 1946, that court affirmed the Patent Office. In re Warp, 154 F.2d 658, 33 C.C.P.A., Patents, 1018, and 154 F.2d 661, 33 C.C.P.A., Patents, 1016.
On August 30, 1946, the application which forms the basis of the present suit was filed. It was entitled "Laminated Material and Process of Making the Same", and was a continuation-in-part of the prior applications. Certain method claims (10 to 14, inclusive) of the new application were allowed by the Patent Office; but the other claims thereof (1 to 9, inclusive) directed to the article or product were rejected by the Patent Office on the ground of res adjudicata, the Patent Office holding that the decisions of the United States Court of Customs and Patent Appeals in the cases above referred to were determinative of the new application. Claims 1 to 9, inclusive, were rejected on the further ground of lack of patentability over the same patents that had been relied upon in rejecting the article or product claims of the prior applications.
Thereupon the present suit was instituted, appellee asking that the District Court compel the issuance of the patent so far as Claims 1 to 9, inclusive, were concerned.
At the hearing in the District Court, Claims 2, 7, 8 and 9 were withdrawn by appellee. The District Court held that plaintiff was entitled to receive on the application in suit, in addition to the method claims allowed by the Patent Office, a patent on Claims 1, 3, 4, 5 and 6. Thereupon this appeal was taken. By stipulation at the hearing of this appeal, Claim 5 was withdrawn.
The appellants, Secretary of Commerce and Commissioner of Patents, rely on two grounds: res adjudicata, in so far as all claims in question here are concerned, citing the decisions of the United States...
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Application of Herr
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Mallinckrodt Chemical Works v. Watson, Civ. A. No. 654-57.
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