De Forest v. Miller

269 F. 718 | D.C. Cir. | 1921

VAN ORSDEL, Associate Justice.

This appeal is from the decision of the Commissioner of Patents in an interference proceeding, awarding to appellee priority of invention for a device described by the Commissioner as “a system for producing musical tones, making use of an audion and a loud-speaking telephone.”

It is unnecessary to set out the counts of the issue, since we concur with the tribunals of the Patent Office on the questions of fact and the conclusions thereon. Appellant, however, seeks to prevail upon the ground that it is shown by the record, as he contends, that appellee is not, in fact, the real inventor; hut the invention which he here claims was made by a third person not a party to this proceeding. Without stopping to consider whether this contention is supported by the record, it is sufficient that it cannot here be raised. This proceeding can only settle the issue of priority as between the parties before the court, and appellant cannot defeat his opponent by showing that a party other than appellee was the real inventor. Foster v. Antisdel, 14 App. D. C. 552; Luellen v. Claussen, 43 App. D. C. 444.

Appellee, in the light of this record, may have difficulty in securing a patent; but that is a question to arise later between appellee as an applicant and the Commissioner of Patents. In that proceeding, however, appellant would have no standing to be heard. Foster v. Antisdel, supra.

The decision of the Commissioner of Patents is affirmed, and the clerk is directed to certify these proceedings as by law rquired.

Affirmed.