267 F. 345 | D.D.C. | 1920
Appeal from a Patent Office decision in an interference proceeding awarding priority to the senior party, Yard
In the Patent Office each party, as frequently happens, urged the nonpatentability of the issue to the other party; Erben contending that the French patent to Siemens-Schuckert, dated January 20, 1913, anticipates Yardley, and hence that the interference should be dissolved. The Law Examiner ruled against Erben’s contention and declined to dissolve the interference. Yardley had satisfied the Primary Examiner on this point by filing affidavits under rule 75 of the Patent Office, for the purpose of overcoming this reference. Erben contended below, as here, that he should have been permitted to inspect those affidavits.
In Gueniffet v. Wictorsohn, 30 App. D. C. 432, we ruled that it was unnecessary to determine what right either party to an interference ultimately might have to a patent; the only question involved being that of priority between the parties to the interference. In Lecroix v. Tyberg, 33 App. D. C. 586, and in Gammeter v. Thropp, 42 App. D. C. 564, we field, following our decision in Burson v. Vogel, 29 App. D. C. 388, that the possible existence of a statutory bar of public use to the issuance of a patent to one of the parties to an interference is not an issue in that interference. We have repeatedly held that the question of patentability is not before us in an interference proceeding. Sobey v. Holsclaw, 28 App. D. C. 65; Mell v. Midgley, 31 App. D. C. 534; Norling v. Hayes, 37 App. D. C. 169.
“Erben contends that the issue is not patentable to Yardley, since the showing made by him to establish that he made the invention prior to the date of a certain French patent was not sufficient; and Yardley contends that what Erben did was, in view of the state of the art, not patentable over the disclosure made in what is known as the ‘Power’ article. * * * Neither of these questions is properly to be considered on an appeal on priority.”
The Assistant Commissioner clearly was right, for Yardley, even assuming that he was anticipated by the French patent, -still would be
The decision is affirmed.
Affirmed.