[Court of Appeals of the District of Columbia.] HAMILTON V. DUNN. Decided February 19, 1917. 246 O. G., 823; 46 App. D. C., 157. INTERFERENCE-PRIORITY. The evidence reviewed and Held that priority was properly awarded to D. Mr. H. E. Dunlap for the appellant. Mr. W. S. Hodges for the appellee. ROBB, J.: Appeal from a decision of an Assistant Commissioner of Patents in an interference proceeding in which priority of invention was awarded the senior party Dunn. The issue is expressed in five counts, of which we reproduce the 1st and 5th: 1. An orchard heater comprising an oil receptacle, a cover therefor, a stack mounted on said cover through which the products of combustion are conducted, and a perforated draft-inlet tube mounted in said cover and suspended within said receptacle, the perforations of said tube being distributed throughout the length of the latter whereby they are successively uncovered as the fuel is consumed for increasing the volume of oil admitted to the receptacle. 5. In an orchard heater, the combination with a liquid fuel container having a cover with a stack through which products of combustion are permitted to escape, of a draft tube located within said container at a point laterally of said stack and communicating with the atmosphere through said cover, said tube having openings therein through which air is admitted to the container in increasing volume as the level of the fuel is lowered. The invention disclosed by the above counts is an orchard-heater in which heavy oil is burned. Similar heaters have been in use for some time, the material difference between this heater and those of the prior art being the perforated draft-tube. It thus will be seen that the invention is a very simple one. Dunn's application is a division of an application filed September 9, 1912. Hamilton filed September 23, 1913. Mr. Dunn has been interested in oil-burning appliances since 1897, and in orchard-heaters since 1910. He testifies that he commenced experiments in the further development of these heaters in the spring of 1911 and during the summer he assembled a heater embodying the perforated draft-tube of the issue. This heater finally was set up in the press-room of the Call Building in San Francisco and, on September 25, 1911, was tested in the presence of several witnesses, including an engineer named George A. Schastey and Mr. John D. Spreckles, Jr. This heater was introduced as an exhibit. Mr. Schastey, a disinterested and very intelligent witness thoroughly familiar with the art, fully corroborates Mr. Dunn as to this early heater. The witness was asked what took place and replied: The heater was connected when we arrived, and the fire started. It was kept burning continuously while we were there, and it was generally discussed and explained, particularly in reference to the down draft. The witness further stated that he saw the heater again within a week and that Mr. Dunn then took the tube out and lifted the tube up to show me the principle, and that the tube was perforated. Mr. Spreckles also testified as to this demonstration. The Examiner of Interferences found no fault with Dunn's evidence as to the construction and test of this exhibit, but nevertheless ruled that it does not disclose the issue because the cover of the oil-receptacle is the stove, the top of which— is more than twenty inches above the top of the receptacle. The Examiners-in-Chief expressed a doubt as to whether this exhibit embodies the specific structure defined in the counts, while the Assistant Commissioner ruled that it does not. However, Dunn proceeded to perfect another heater which clearly does embody the issue, and this was perfected and tested about the holidays of 1911, Mr. Schastey testifying that these experiments of Mr. Dunn's, as I remember, all centered around the holidays of 1911 and may have been a week before or a week after, that is, either a little before Christmas of 1911 or the first week in January, 1912. A careful reading of the evidence leaves no room for doubt in our minds that this exhibit (marked "No. 5") amounted to a reduction to practice of the invention. In the early fall of 1912 Dunn had sample heaters made, a number of which were sent to fruit-growers in the southern part of California. Late in December of that year or early in January of 1913 other heaters were sent out. This resulted in orders for a large number of heaters, and the success of the device was assured. Hamilton was engaged in manufacturing orchard-heating devices and possessed every facility for placing upon the market any invention he might make. In his preliminary statement he alleges disclosure and reduction to practice of the invention "in the early part of January, 1912." Therefore, under the interpretation given to such an averment in the Patent Office, he is restricted to January 15, 1912, as his date of conception and reduction to practice. Mr. Hamilton testifies that he constructed a heater embodying the invention and tested it in the back yard of his boarding-house in December of 1911 and January of 1912, and that the tests showed the heater to be successful. His wife and daughter testify that such tests were made, and the wife testifying that her husband "regarded them as successful ” and the daughter that the perforations clogged with soot "after a long period of burning." This heater was introduced as an exhibit, but it had no stack. The Examiners-in-Chief commented upon this fact and upon the failure of any witness to testify that it ever did have one. Hamilton was president of the Hamilton Orchard Heater Co. The Wheeling Corrugating Co., of Wheeling, W. Va., manufactured orchard-heating devices for Mr. Hamilton and a Mr. Westwood was the general sales agent of that company. Mr. Hamilton in June of 1912 visited the company, when the device involved in this interference was taken into consideration, along with others, but was not adopted. No further activity occurred until after Dunn's heater was on the market, and a letter written by Mr. Hamilton to Mr. Westwood, quoted in full by the Examiners-in-Chief, clearly shows that Dunn's activity alone was responsible for Hamilton's change of attitude. While we agree with the Examiners-in-Chief and the Assistant Commissioner that in no event, under the facts of this case, can it be said that Hamilton is the prior inventor, (Matthes v. Burt, C. D., 1905, 574; 114 O. G., 764; 24 App. D. C., 265; Brown v. Campbell, C. D., 1914, 170; 201 O. G., 905; 41 App. D. C., 499; and Dutcher v. Jackson, C. D., 1916, 154; 225 O. G., 738; 44 App. D. C., 465), we are quite clear that Dunn should be given a date of conception and disclosure as early as September 25, 1911; in other words, that the construction and operation of the early device in the presence of Mr. Schastey and Mr. Spreckels amounted to such a disclosure. The invention really resided in the perforated draft-tube, and Mr. Schastey's testimony would enable any one skilled in the art successfully to construct the device of the issue, which is sufficient to constitute a disclosure. Since that date is earlier than any date which can be accorded Hamilton, Dunn was entitled to the award of priority, as he showed due diligence. Moreover, the burden was upon Hamilton to establish his case by a preponderance of the evidence. Putting aside the evidence of Dunn's early activity, Hamilton's evidence falls short of establishing that he conceived and disclosed the invention prior to the date of disclosure established by Dunn for his exhibit No. 5. The decision is affirmed. Affirmed. [Court of Appeals of the District of Columbia.] PORTER AND RIDER. v. RIDER. Decided April 2, 1917. 246 O. G., 824; 46 App. D. C., 294. INTERFERENCE-PRIORITY. Record reviewed and Held that priority was properly awarded to R., the senior party. Mr. Henry D. Williams for the appellants. Mr. Hans v. Briesen for the appellee. ROBB, J.: This is an appeal from concurrent decisions of the Patent Office tribunals in an interference proceeding awarding priority of invention to the senior party. The invention relates to a method of producing fuel-vapor from oils, such as kerosene and crude petroleum, adapted for use in internal-combustion engines. The counts are three in number, of which we reproduce the first and third: 1. The method of producing a fuel vapor adapted for use in internal combustion engines, which consists in (1) providing a substantially continuous supply of finely subdivided fuel liquid, (2) producing a flame and subjecting such liquid in its finely divided condition to the direct action of said flame for a length of time sufficient to effect only a vaporization of the liquid, (3) extinguishing the flame at a point in the progress of the vaporized material before any substantial amount of the material has been consumed, and (4) collecting the resulting product for use. 3. The method of producing a fuel vapor adapted for use in internal combustion engines, which consists in (1) providing a substantially continuous supply of finely subdivided fuel liquid, (2) producing a flame and subjecting such liquid in its finely divided condition to the direct action of said flame for a length of time sufficient to effect only a vaporization of the liquid, (3) extinguishing the flame at a point in the progress of the vaporized material before any substantial amount of the material has been consumed, (4) bringing the extinguished product at this stage into contact with a supply of superheated air which is mixed therewith, and (5) collecting the resulting product for use. The case has been very carefully presented, both by brief and oral argument, and, owing to its importance, has received very full and careful consideration by the tribunals of the Patent Office. We have reached the same conclusion as did those tribunals and, being satisfied with their reasoning, affirm the decision without further discussion. Affirmed. [Court of Appeals of the District of Columbia.] MURPHY V. THOMPSON. Decided June 2, 1917. 246 O. G., 824; 46 App. D. C., 515. 1. INTERFERENCE PRIORITY. Record reviewed and Held that the renewal application of T. related back to his original filing date and that priority was properly awarded to him. 2. APPLICATIONS-FORFEITED RENEWAL REBUTS ANY PRESUMPTION OF ABANDON MENT. The granting of a renewal application by the Commissioner of Patents rebuts any presumption of abandonment. Mr. J. A. Carr and Mr. A. M. Holcombe for the appellant. Mr. L. S. Bacon, Mr. J. H. Milans, and Mr. F. P. Davis for the appellee. VAN ORSDEL, J.: This appeal is from a decision of the Commissioner of Patents in an interference proceeding awarding priority of invention to appellee Thompson. The case was disposed of on appellant's motion to dissolve the interference. Appellant also moved, in the alternative, that, in case of an adverse decision on the motion to dissolve, the burden of proof should be shifted to Thompson and a time set for the taking of testimony on the question of abandonment. Appellant Murphy filed his original application December 22, 1911. A divisional application was filed April 10, 1915, on which a patent was issued October 12, 1915. Thompson's application was filed June 16, 1911; allowed December 31, 1914; forfeited June 30, 1915, and renewed November 9, 1915. It appears from a comparison of the above dates that Murphy's patent was issued between the date of Thompson's forfeiture and the date of his renewal. Murphy, therefore, contends that Thompson had abandoned the invention at the date he acquired his patent. Of course, if the continuity of Thompson's original application was interrupted by abandonment, he could not claim constructive reduction to practice as of his original filing date. No testimony was taken on the question of abandonment, and the granting of a renewal by the Commissioner rebuts any presumption in favor of it. In this situation, the tribunals below held that Thompson could relate back to his original filing date, which, on the face of the record, disposes of Murphy's contention. We are in accord with this view, since the case is ruled by the well-considered opinion of Mr. Justice Robb in Cutler v. Leonard (C. D., 1908, 483; 136 O. G., 438; 31 App. D. C., 297).. |