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3. PATENTS-OPERABILITY

No device conforming in minute detail to application has been made, but operability is shown by devices closely approaching drawings; modifications are within purview of skilled in art.

4. PATENTS-INTERFERENCE-INTERFERENCE IN FACT

Limitation in count may not be disregarded in interference.

United States Court of Customs and Patent Appeals, April 9, 1945

[Affirmed.]

APPEAL from Patent Office, Interference No. 75,333

A. G. Gross, John F. Robb, and Harry C. Robb for appellant.

Cameron, Kerkam & Sutton (Loyd H. Sutton of counsel) for appellee.

[Oral argument January 3, 1945, by Mr. John F. Robb, Mr. Gross, and Mr. Sutton] Before GARRETT, Presiding Judge, and BLAND, HATFIELD, JACKSON, and O'CONNELL, . Associate Judges

GARRETT, Presiding Judge, delivered the opinion of the court: This is an appeal from the decision of the Board of Appeals of the United States Patent Office, awarding priority to the party Hainsworth, thus reversing the decision of the Examiner of Interferences, in an interference proceeding involving a single count which reads as follows:

In a continuous absorption refrigerating system of the type in which an inert gas is used as a pressure equalizing agent, the combination of a boiler, an absorber, an evaporator, gas conduits for circulating the inert gas between the evaporator and the absorber and for conveying refrigerant from the evaporator to the absorber, mechanical pumping means in one of said conduits for raising the pressure of the gas therein to a total pressure higher than that normally prevailing in the evaporator and means for circulating absorption liquid between the boiler and the absorber and utilizing the gas at the raised pressure to promote the liquid circulation.

The count originated as claim 2 in a patent, No. 2,027,927, issued to the party Nelson January 14, 1936, upon an application, serial No. 692,366, filed October 6, 1933, application for reissue of which, serial No. 105,241, was filed October 12, 1936. It was copied by the party Hainsworth into his application, serial No. 664,475, filed April 5, 1933.

The Nelson patent and his reissue application are shown to be assigned to The Hoover Company of North Canton, Ohio, of which he was an employee, and the Hainsworth application to Servel Inc. of New York, of which he was vice president in charge of engineering.

The interference was declared January 31, 1938, between the Nelson reissue application and the Hainsworth application, which latter antedated by about six months the original Nelson application. So, Hainsworth is the senior party and the burden was upon Nelson to establish priority by a preponderance of the evidence.

In the brief for Nelson it is said:

This case is somewhat unusual in that the questions to be decided are more involved than usually arising in interference causes. In other words, the issues which are raised by this appeal have to do with:

First: Priority of invention.

Second: The inoperativeness of the system of Hainsworth as disclosed in his application.

Third: Originality as between the parties in view of the disclosure to Hainsworth of certain conception evidence of Nelson.

Fourth: Whether the law of estoppel in pais and by deed is applicable to Hainsworth by reason of the licensing situation between the privies of the parties hereto, and the actions of the party Hainsworth.

*

Fifth: Whether Hainsworth and his assignee, Servel Inc., in privity herein, are bound by the acknowledgement of ownership in Nelson's privy of the invention in controversy under the licensing contract.

It is proper to state just here that while the decision of the board reversed the decision of the Examiner of Interferences, there was disagreement in their conclusions upon only one of the issues above quoted from the Nelson brief-that of the inoperativeness of the Hainsworth apparatus disclosed in his application. The Examiner of Interferences agreed with Nelson on that issue, but disagreed with him as to all the other issues. So, the reversal by the board was directed to single issue, and upon all other issues we have concurring decisions by the Patent Office tribunals.

To state the matter somewhat differently, both the Examiner of Interferences and the board held that both Hainsworth and Nelson were restricted to their respective filing dates (Nelson being given the benefit of the date on which his original application was filed-October 6, 1933) for both conception and reduction to practice; that Hainsworth was not shown to have derived the invention from Nelson; that Hainsworth was not estopped, and that Hainsworth and his assignee were not bound under the licensing contract (hereinafter explained) in any manner which precluded Hainsworth from contesting with Nelson the question of priority as to the count involved.

In the appeal to us Nelson set forth seventy-eight separate reasons for appeal which are grouped in his brief under five headings corresponding to the issues as delineated in the quotation from his brief, supra.—that is, (1) Priority; (2) Inoperativeness; (3) Originality; (4) Estoppel, and (5) Ownership.

It is obvious that a reversal of the board's holding that the Hainsworth application disclosed an operative apparatus would be conclusive of the controversy, and, therefore, it is appropriate that this phase of the case receive first consideration.

A full and accurate description of the respective devices as visualized from the drawings appears in the decision of the Primary Examiner

on a motion by Nelson to dissolve, in which motion inoperativeness of the Hainsworth device, as described in his application, was alleged, and we here reproduce same in connection with photographic reproductions of the respective drawings.

The Nelson drawing is as follows: [See also p.

314.]

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This, together with the pertinent part of the specification, was explained by the Primary Examiner as follows:

In the apparatus shown in the Nelson reissue application a solution of ammonia water is heated in a boiler B. Ammonia is distilled off from the water and the ammonia vapor passes through a conduit 14, a rectifier R, and a pipe 16 to a reabsorber C. In the reabsorber C the ammonia vapor is absorbed by water which enters the reabsorber through conduit 17. The ammonia water formed in reabsorber C passes through a conduit 19 to the top of an evaporator E. A relatively heavy or dense inert gas such as air or nitrogen is forced into conduit 19 through conduit 39 and this gas causes the ammonia water to flow upwardly in conduit 19 from the reabsorber C to the evaporator E. The ammonia water and dense inert gas mix together and pass downwardly over baffles in the evaporator E. When the ammonia water and dense inert gas mix together ammonia evaporates from the ammonia water into the dense inert gas because of the partial pressure of the dense inert gas in the gas space in contact with the ammonia water. This evaporation of the ammonia from the ammonia water produces the cooling. The water from which the ammonia has been evaporated in evaporator E flows by gravity through a conduit 17 from evaporator E back to reabsorber C. The mixture of dense inert gas and ammonia vapor formed in evaporator E passes through a conduit 31, the compartment 32 of a gas heat exchanger, conduit 33, pump P and a conduit 34 to a conduit 29. Water from which ammonia has been distilled off in boiler B passes through conduit 29 and the mixture of dense inert gas and refrigerant is forced into the water in said conduit 29 from conduit 34 and lifts the water upwardly to the top of absorber A. In the upper portion of the left hand leg of the conduit 29 and in the absorber A the refrigerant is absorbed by the water and the ammonia water thus formed flows by gravity through reservoir 25 and conduit 26 back to boiler B. The water does not absorb the inert gas.

The inert gas from which the ammonia vapor has been absorbed passes through conduit 35, through the gas heat exchanger compartment 36, tubes 37, compartment 38 and conduit 39 from which it forces its way into the liquid (ammonia water) in conduit 19. The pump P driven by motor M causes the dense inert gas to circulate through its circuit, that is, conduit 34, upper part of the left leg of conduit 29, absorber A, conduit 35, heat exchanger chamber 36, tubes 37, heat exchanger chamber 38, conduit 39, upper part of left leg of conduit 19, evaporator E, conduit 31, compartment 32 of the gas heat exchanger, and conduit 33.

Forcing the dense inert gas from conduit 34 into liquid in the upper part of the left leg of conduit 29 causes liquid to circulate between absorber A and boiler B. Forcing the dense inert gas into the liquid in the upper left leg of conduit 19 causes liquid to circulate between evaporator E and reabsorber C.

As has been previously stated, the ammonia vapor boiled out of the ammonia water in boiler B passes through conduit 14, rectifier R and conduit 16 to reabsorber C where the ammonia is absorbed by water that enters through conduit 17 and leaves through conduit 19. Any gas that is not absorbed in reabsorber C, such as inert gas that may accidentally work its way along with the ammonia to reabsorber C, is vented to inert gas conduit 35 through the top of small chamber 21 and conduit 41.

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