Obviously, after Budner had conceded priority, as aforesaid, it was the view of Brumbaugh that Budner's proof, if admitted to the record, would have a bearing upon the question of originality and the question of collusion and fraud. He states, in substance, that if Wilson has made a case, the record of Budner must be used for the purpose of making the same. The Budner record was included in the instant record upon the motion of Brumbaugh and without objection by Wilson. It shows that Budner conceded that Wilson wrote him while he was working for the Johnson Company telling him how to make the kind of wax called for by the counts and that he followed the instructions and made it. Budner had been receiving instructions from Wilson while the latter was working with Dr. Wilkes and others at the Mellon Institute, and it seems that Wilson had sent the same kind of instructions to a number of experimenting chemists who were engaged in trying to produce a shining, waterproof wax which required no rubbing. Among the many other circumstances which brought it to the conclusion that Wilson had successfully proved his priority of the invention defined by the counts, the board referred to Exhibits N−5, 6, 40, and 40a. The first of these exhibits contains instructions sent out to Brumbaugh by Wilkes, and the second, No. 6, is identical with those sent to others who manufactured wax according to the directions therein contained. Exhibit 40 is a letter to S. C. Johnson & Son, Inc., containing the same instructions as those in the first two exhibits; and Exhibit 40a is a letter written to the Wilbert Products Company, containing the same formula and instructions for making emulsion polishes with the use of morpholine as had been sent to the other parties. Exhibits N-5 and 6 bear the date, January 3, 1936, while the other two exhibits bear dates in the early part of 1935. The board has called attention to the fact that the disclosure in these four exhibits is substantially identical with Example III of Wilson's application. There is satisfactory proof in the record which shows that when the directions in the formula in said exhibits were followed, satisfactory results were obtained, and that a shining, self-polishing, waterproof wax was produced. [4] The board considered the effect of the established rules of equity jurisprudence on the admissibility of the Budner proof urged by Brumbaugh and the bearing of the pertinent rules of the Patent Office thereon and held first, that the testimony was incompetent and irrelevant; and second, that it deemed it not properly a part of the record at final hearing. It also stated: In conclusion it may be observed that, assuming the Budner testimony to be admissible, taken alone or in conjunction with the other evidence nothing is found therein of such significance as to defeat the right of the party Wilson to prevail. Hence, regardless of whether or not the Budner depositions be considered, the record is hot deemed to establish or even to suggest such impropriety of action by or on behalf of Wilson as to warrant a holding of fraud and collusion on his part as charged by his adversary. On this phase of the case it is urged by Brumbaugh that in view of the fact that Budner was an employee of the Johnson Company, which purchased some of its chemicals used in manufacturing waxes from Wilson's company (the Carbide Company), and of the fact that Budner conceded priority to Wilson, and of the further fact that Budner and Wilson and their counsel evidently met and talked the matter over before the taking of testimony for Budner at the Johnson plant in Racine, Wisconsin, it should be held that there was fraud and collusion between them. Without expressing any opinion as to the admissibility of the Budner record, which was thoroughly discussed by the board, we agree with the board that nothing is contained therein, or, for that matter, in the record as a whole, which would warrant a holding of fraud and collusion between Wilson and Budner or their attorneys, or justify such a conclusion as is contended for by appellant. [5] We have examined the Wilson application, parts of which we have quoted hereinbefore. We think it is not subject to the criticism of appellant that it is not a sufficient compliance with the statutory requirements to justify the issuance of a valid patent. It seems to us that the application is quite full and complete as to the manner of compounding the wax emulsion which is the subject-matter defined by the counts. We have carefully examined all the many reasons of appeal noted by appellant, some of which go to the specific wording of the holding of the Board of Interference Examiners and some of which are long and argumentative. We regard many of them as being without sufficient merit to justify any discussion here. It is therefore our conclusion first, that Wilson's application is sufficient disclosure to satisfy the requirements of R. S. 4888; second, that the record shows that the disclosures of the applications of Wilson are not inoperative; third, that Brumbaugh obtained the invention defined by the counts through information furnished by Wilson or his associates or subordinates; fourth, that Brumbaugh has failed to carry his burden of proving, by a preponderance of the evidence, his priority of invention of the counts, and that the record sustains the finding of the board that Wilson is the prior inventor of the subject-matter of the counts (the board has discussed the record on priority, which embraced the exhibits of the parties, tests made by each of them, including inter partes tests, and other pertinent matters, at unusual length, and we agree with its holding and conclusions as to the same); and fifth, that there is no fraud and collusion shown on the part of Wilson and Budner or their attorneys justifying awarding priority of the invention of the counts to the party Brumbaugh. Upon the foregoing holdings, we conclude that the board arrived at the right conclusion, and its decision is affirmed. PATENTS 553 O. G. 559; 30 C. C. P. A. 847; 134 F. (2d) 327 POTTS v. KIMBALL ET AL. (No. 4705) INTERFERENCE RIGHT TO MAKE THE CLAIM. The phrase "cam sleeve with a series of cams thereon equally numbered to said selector levers" is a definite, specific limitation of the count. Such limitations may not be ignored in interference proceedings like the one at bar, and it is not sufficient to urge that the structures are equivalent in function. United States Court of Customs and Patent Appeals, February 1, 1943 APPEAL from Patent Office, Interference No. 78,733 [Affirmed.] Harold B. Whitfield (C. B. Hamilton of counsel) for appellant. [Oral argument January 8, 1943, by Mr. Whitfield and Mr. Reynolds] Before GARRETT, Presiding Judge, and BLAND, HATFIELD, LENROOT. and JACKSON, Associate Judges BLAND, Judge, delivered the opinion of the court: The Board of Interference Examiners of the United States Patent Office, in the instant interference proceeding, awarded priority of invention of the single count involved to the appellees, Vernon R. Kimball and Robert F. Dirkes (hereafter referred to as Kimball et al.). Louis M. Potts (hereafter referred to as Potts) has here appealed from the board's decision. The interference involves an application of Potts, filed March 25, 1931, and renewed May 3, 1939, and a patent of Kimball et al., No. 2,135,376, issued November 1, 1938, on an application filed October 22, 1935. The real parties in interest are Potts' assignee, the Teletype Corporation, and Kimball et al.'s assignee, the Western Union Telegraph Company. Originally, the interference was declared upon two counts, which were claims copied by Potts from the Kimball et al. patent. Both parties filed preliminary statements, and Kimball et al. alleged no date earlier than Potts' filing date of March 25, 1931. Kimball et al. were accordingly placed under order to show cause why judgment on the record should not be entered against them. In answer to such order Kimball et al. filed a motion to dissolve as to both counts. The motion was, by the Primary Examiner, granted as to one count and denied as to the remaining count, which forms the issue in this interference. The count reads as follows: 1. Signal receiving apparatus comprising a series of movable selector levers, an independently rotatable selector cam sleeve with a series of cams thereon equal in number to said selector levers and movable past said levers in substantial synchronism with received line impulses, means operated by said cam sleeve to initiate the rotation of a second cam sleeve, means operated by said second cam sleeve to initiate the rotation of a third cam sleeve, and means operated by said third cam sleeve to effect a printing operation and a paper feeding operation. [Italics ours.] Kimball et al.'s motion to dissolve was on the ground that Potts could not make the count because his application allegedly did not show the following three limitations of said count: 1. An independently rotatable selector cam sleeve with a series of cams thereon equal in number to said selector levers; 2. Means operated by said cam sleeve to initiate the rotation of a second cam sleeve; and 3. Means operated by said second cam sleeve to initiate the rotation of a third cam sleeve. The Primary Examiner held that none of these contentions were tenable and accordingly denied the motion to dissolve as to count 1. The Board of Interference Examiners held that although Potts could make the second and third limitations of the count, he could not make the first limitation. It therefore awarded priority of the invention of the count to Kimball et al. In view of our conclusion, it is necessary for us to consider only the first limitation. We are of the opinion that the Potts disclosure does not support it. The inventions of both parties relate broadly to complicated signal receiving apparatus. That of Potts is particularly devoted to such uses as for stock-ticker bulletin boards, while that of the other party, Kimball et al., is used in recording telegraph messages. Many parts of the devices are not of concern here. The particular issue at bar has to do with what Potts, in his specification, refers to as a "selector mechanism," which is shown in his Fig. 65. Additional reference numerals were inserted on Fig. 65 for the purpose of explanation, and the resultant drawing appears in the record as Exhibit A. We here reproduce Exhibit A. [See p. 849.] In discussing this figure of the Potts disclosure, the Primary Examiner had the following to say: of the count. It is to be noted, however, that the cams of the Potts disclosure closure has six selector levers and twelve cams it does not fulfill the language equal in number to the selector levers. They state that since the Potts disnot support count 1 in that it calls for a cam sleeve with a series of cams thereon With regard to count 1, Kimball et al argue that the structure of Fig. 65 does EXHIBIT A |