281 F. 586 | D.C. Cir. | 1922
These are appeals from decisions of the Patent Office in two interference proceedings, in the first of which priority was awarded the junior party, Dyson, and in the second to the senior party, Fish.
The subject-matter of the first interference, No. 1493, is an improvement in automatic telephone systems and specifically concerns the arrangements for returning the switches to normal at the end of a conversation. There are three counts involved, but we do not deem it necessary to repeat them here.
Fish relies upon his filing date of December 22, 1905. As to Dyson, he was employed by Milo G. Kellogg, who was the dominating spirit of the so-called Kellogg Organization, which consisted of well-known telephone engineers and experts. Dyson’s employment contemplated that he should design and develop apparatus and systems of telephony, particularly those branches relating to so-called semiautomatic and full automatic systems, together with work relating to the prosecution of applications for letters patent upon all inventions made by him and others. In his testimony Mr. Dyson referred to the Kellogg Organization as a “patent factory, in that the work performed by its organization, as such, consisted principally in the invention, development, and securing of patent rights on apparatus and systems relating to the art of telephony, and principally to the branches of such art which related to the so-called automatic and semiautomatic methods. * * * Mr. Kellogg had in his employ constantly, or for various periods of time and various duties, a number of well-known and efficient patent attorneys.” Prior to May, 1905, Mr. Dyson entered into a contract with Mr. Kellogg under which the latter was to have an option on the numerous inventions made by Dyson, and from the correspondence it appears that Kellogg was to accept or reject these inventions within a time certain. On May 5, 1905, Mr. Dyson submitted to Mr. Kellogg for acceptance or rejection a number of inventions, including the one here involved. On November 14, 1905, no action whatever having been taken by Mr. Kellogg or the Kellogg Organization concerning these inventions, Mr. Dyson wrote Mr. Kellogg and invited his attention to the_ terms of their contract, asking that he be given information as to which of the inventions would be accepted. This letter inspired no action on the part of Mr. Kellogg or the Organization, and on February 2, 1906, Dyson again wrote Kellogg, directing attention to Kellogg’s failure to respond to the prior letter and stating that, inasmuch as he (Dyson) might “have serious trouble in proving diligence in case of interference,” Kellogg should “either accept or reject these inventions.” On February 13th following the Kellogg Organization recommended the acceptance of .a number of Dyson’s inventions, including the one here involved, and on February 24th this invention was accepted. On the day following the draftsman commenced making drawings and on March 24, 1906, the application was filed.
The question with which we now are concerned, therefore, is whether reasonable diligence was being used, to paraphrase the provisions of section 4920, R. S. (Comp. St. §' 9466), when Fish entered the field in December, 1905.
It results that the decision in No. 1493 must be reversed, and priority awarded Fish.
Reversed as to appeal No. 1493.
Affirmed as to appeal No. 1494.