Stats., sec. 4911, sec. 9 of the act of February 9, 1893, establishing this court)— Sobey vs. Holsclaw, supra. The decision of the Commissioner of Patents is affirmed, and the clerk is directed to certify these proceedings as by law required. Affirmed. [Court of Appeals of the District of Columbia.] ELSOM V. BONNER. Decided March 12, 1917. 246 O. G., 300; 46 App. D. C., 236. INTERFERENCE-JUDGMENT ON THE RECORD. Record reviewed and Held that judgment on the record was properly rendered against E. Mr. A. E. Parsons for the appellant. Mr. Fritz v. Briesen for the appellee. VAN ORSDEL, J.: This is a companion interference to the triparty interference including the party Golde, No. 1,085, just decided, and relates to the same invention. Here, as in the other case, Elsom was called upon to show cause why judgment of priority should not be entered against him on the record, and, as there, he moved to dissolve on the ground of nonpatentability of the issue. The motion was denied, and judgment of priority rendered against him on the record. The appeal is, in effect, from a ruling holding the count in issue patentable. It is fully disposed of by our opinion in the companion case. The decision of the Commissioner of Patents is affirmed, and the clerk is directed to certify these proceedings as by law required. Affirmed. [Court of Appeals of the District of Columbia.] DRECKSCHMIDT v. SCHAEFER AND HOLMES. Decided April 2, 1917. 246 O. G., 301; 46 App. D. C., 295. 1. INTERFERENCE-REDUCTION TO PRACTICE-CONCEALMENT. Where after reduction to practice an inventor puts aside his invention for approximately two years until he discovers that his rival has placed the invention upon the market, Held that he is not entitled to an award of priority over his more diligent rival. 2. SAME-PRIORITY. Where D. did nothing with his invention from the time S. and H. entered the field until they filed their application, Held that priority was properly awarded to S. and H. Mr. J. D. Rippey and Mr. L. C. Kingsland for the appellant. VAN ORSDEL, J.: This appeal is from a decision of the Commissioner of Patents awarding priority of invention to appellee for a chemical fire extinguisher described in the single count as follows: A chemical fire apparatus comprising a tank, two non-communicating containers supported in said tank one above the other, a breakable closure for one of said containers, a breakable partition between said containers, and manipulative means for breaking said closure and said partition whereby the contents of said containers are brought together to form a gas for the purpose of producing a pressure upon the liquid contained in said tank. Appellant reduced the invention to practice in July, 1912, but did not file his application until July 27, 1914. In the meantime the device remained under his desk in his office. It may be suggested that the invention consists of apparatus inclosed in an ordinary fireextinguisher case, so that anyone seeing it under the desk would not be enlightened as to the invention. Appellant did nothing with the invention after the reduction to practice until after he filed his application. The earliest date claimed by appellees is June, 1913, as date of conception, which was followed by filing an application in December. It also appears that in the spring of 1914 they were engaged in manufacturing the extinguisher of the invention, during which time appellant had access to their works where the parts were being manufactured. Appellees also published a circular on July 1, 1914, advertising and describing the device in issue. While it does not appear that appellant gained information of the manufacture or saw the circular, it is significant that during this time he was engaged in the sale of fire-extinguishers and offered no testimony in rebuttal tending to refute the implication that he had knowledge of the activities of appellees. It, however, remains that, whether he acquired this knowledge or not, he was doing nothing with his invention from the time appellees entered the field until they filed their application. The case, therefore, is ruled by Howard v. Bowes (C. D., 1908, 547; 137 O. G., 733; 31 App. D. C., 619). The decision of the Commissioner of Patents is affirmed, and the clerk is directed to certify these proceedings as by law required. Affirmed. [Court of Appeals of the District of Columbia.] BIJUR v. RUSHMORE. Decided April 23, 1917. 246 O. G., 301; 46 App. D. C., 395. 1. INTERFERENCE COUNTS-EACH ELEMENT MATERIAL. The rule confirmed that all limitations appearing in the counts of an interference will in interference proceedings in the Patent Office be regarded as material to the invention covered thereby. 2. SAME PRIORITY-RIGHT TO MAKE CLAIMS. Where the counts include an armature axially movable and the device built and operated by B. prior to the filing date of R. did not contain this specific elements, Held that priority was properly awarded to R. Mr. R. S. Blair for the appellant. Mr. George C. Dean and Mr. C. W. Fairbank for the appellee. SHEPARD, C. J.: The invention applied for by Bijur and Rushmore is involved in an electric motor for starting an internal-combustion engine provided with means whereby transmission-gearing between the motor and engine is automatically brought into mesh when the motor is started and automatically brought out of mesh upon the engine's taking up its own cycle of operation. The issue as originally formulated involves six counts. Thereupon, upon Bijur's motion, six others were added. The interference was dissolved as to three of the latter counts in view of Bijur's patent of May 5, 1914. After testimony was taken by Bijur, Rushmore made a motion to dissolve the remaining nine counts, and the interference was remanded to the Primary Examiner to consider the pertinency of five of the counts. The counts left in interference are the following: 1. An engine starting electric motor comprising a field magnet and an armature axially movable with respect to the field and normally displaced but adapted to be brought into driving relation with a device to be started thereby, an automatic means for restoring the movable armature to its normal displaced position, said means being dependent upon the increased counter-electromotive force developed when the speed is increased through starting of the device. 2. An apparatus of the class described comprising in combination, an engine starting electric motor comprising a field magnet and an armature axially movable with respect to said field and adapted to be brought into driving relation with a device to be started thereby, together with means for restoring the armature to its normal displaced position when the motor has reached a predetermined speed. 3. In an apparatus of the class described and in combination, an electric starting motor comprising a field having a winding in series with the armature, an armature axially movable in said field and provided with a power-transmitting connection adapted to engage a device to be started thereby, means normally tending axially to displace said armature shaft to disengage said connection in opposition to the attraction of said magnetic field when energized, said displacing means being of such strength relatively to the field as to be overcome by the attraction of the field on the armature when excited by the normal working current and to overcome the attraction of the field upon the armature when the current is reduced by action of the increased counter-electromotive force due to increased speed of the motor when the starting of the device is effected. 4. An electric starting motor comprising a field magnet and an armature arranged to have considerable axial movement within the field, in combination with means for engaging the motor with the device to be started through the agency of the axial movement of the armature and to be actuated by the motor current, and being so arranged that after the device has reached a predetermined speed the resultant decrease in the current passing through the motor will cause the automatic disengagement of the motor from the device. Bijur filed May 5, 1913, and Rushmore, September 27, 1912. The invention in issue is a device for starting internal combustion engines, the same consisting of an electric motor and gearing connecting the same with the fly wheel of the engine. This gearing includes a pinion that is secured to the motor shaft and that is adapted to engage with a large gear on the engine fly wheel, but is normally held out of engagement therewith by a spring that thrusts against the end of the shaft. When the motor circuit is closed, the field magnets act upon the armature as a solenoid and draw the shaft longitudinally against the tension of the spring until the pinion is in mesh with the gear on the fly wheel. When the engine starts running under its own power, it speeds up the armature, thereby creating such a high counter electro-motive force that the current through the field coils falls to that point where the solenoid action is no longer sufficient to overcome the force of the spring, and the latter forces the shaft backward until the pinion is again disengaged from the engine gear. A great number of motions were made but need not be considered, as the parties have accepted the issues as presented. Rushmore relies on his filing date, September 27, 1912, and has taken no testimony. Bijur has produced a sketch upon which his case depends. If this sketch discloses the issue of the interference, Bijur is entitled to priority, because it is admitted that he built and operated the device shown in the sketch before Rushmore's filing date. Bijur admits that the counts of his issue do not read literally upon the sketch, as it has no sliding or axially-movable armature. The Patent Office tribunals found that the construction of the counts require an armature movable with respect to the field and normally displaced and the return of the armature to its normal diplacement. The contention made by Bijur is that— the axial movement of the motor member by mounting a pinion on a threaded shaft is old, certainly so far as Rushmore is concerned, as it is shown, for example, in the Bijur Patent No. 1,095,696. It is accordingly submitted on behalf of Bijur that under these circumstances the above count is to be broadly construed, and that the equivalent for the axially movable armature is found in the axially movable pinion of the prior Bijur apparatus. Both forms of an axially movable motor member for automatic connection and disconnection with the load were old, and it is submitted that either form of apparatus fairly embodies the claim in question. Courts cannot disregard limitations that are expressly defined in a patent; and the rule applies with greater force in the Patent Office between applications. (Collom v. Thurman, C. D., 1907, 330; 131 O. G., 359; Wilson and Forrest v. Ellis, C. D., 1915, 69; 211 O. G., 286; 42 App. D. C., 552) In that case it was said by Mr Justice Van Orsdel, who delivered the opinion of the court: There is a rule which has been long established and many times confirmed that all limitations appearing in the counts of an interference will in interference proceedings in the Patent Office be regarded as material to the invention covered by such counts. This rule is the only practicable one which the Office can adopt. In its nature it is consistent with the principle which underlies the drawing and construction of claims as generally followed. Its application in practice is seldom found to result in injustice. It follows that Bijur cannot be given the benefit of the date of the construction of his exhibit, and must be confined to his filing date of May 5, 1913, which is later than that of Rushmore. The decision is affirmed, and the clerk will certify this decision to the Commissioner of Patents as required by law. Affirmed. [Court of Appeals of the District of Columbia.] HILL v. ALLEN. Decided May 26, 1917. 246 O. G., 567; 46 App. D. C., 446. INTERFERENCE-PRIORITY. Evidence reviewed and Held that priority was properly awarded to A. Mr. Horace Van Everen and Mr. Frederick P. Fish for the appellant. Mr. J. Edgar Bull and Mr. W. L. Helms for the appellee. ROBB, J.: This appeal is from concurrent decisions of the Patent Office tribunals in an interference proceeding involving ten claims, of which claim No. 4, here reproduced, is illustrative: 4. A buttonhole sewing machine, having, in combination, stitch-forming mechanism and a work-holding clamp, mechanism for actuating the stitch-forming mechanism and relatively moving it and the work-holding clamp to sew about a buttonhole, a cutter, a cutter-carrying lever, mechanism actuating the lever to move the cutter toward and from the material, and connection between said lever and clamp for closing the clamp by movement of the lever toward the material. |