This is a companion case to Replogle v. Kirby (No. 1327) — App. D. C. —, 269 Fed. 862, decided this day. The cases were heard together. It is unnecessary to set out the counts of the issue, inasmuch as, with the exception of one point hereafter considered, we approve the disposition of the case made by the Commissioner of Patents. The issue is in six counts. The Commissioner awarded counts 2 and 3 to Replogle, and dissolved the interference as to counts 1, 4, 5 and 6. The Commissioner, however, in his opinion states Fiat—
“Counts 5 and 6 are clearly unpatentable over Noguchi and should never have been included in this interference. Kirby has been defeated in an interference with Noguchi and of course cannot be granted these claims, and unless Replogle wins in the Replogle v. Noguchi interference, he cannot be allowed these claims. This interference therefore is dissolved as to counts 1, 4, 5 and 6.”
Inasmuch as we have held in the former case that Replogle is entitled to priority over Noguchi, it follows that he should also be awarded counts 5 and 6.
The decision is affirmed as to counts 1, 2, 3 and 4, and reversed as to counts 5 and 6.
Affirmed as to counts R 2, 3 and 4, and reversed as to counts 5 and 6.