Swain v. Booth

295 F. 236 | D.D.C. | 1924

SMYTH, Chief Justice.

Swain appeals from a decision of the Commissioner of Patents awarding priority to Booth in an interference proceeding relative to an invention which concerns an improved vehicle wheel. The invention is described in one count, which reads as follows:

The new article of manufacture, comprising a semi-wood wheel for motor vehicles, and composed of a body of wooden spokes radiating from a common center, and each having an integral shaped outer end, in combination with a wrought metal endless fixed rim, which presents a demountable rim supporting raised back flange, said fixed rim having at points below said back flange as many pressed-out, closed, concave sockets as there are spoke ends, said sockets fitting the shaped ends of respective wooden spokes and sealing the end grain thereof, and said rim being circumferentially tensioned upon, and holding under compression, the body of spokes, as a whole.

In harmony with the Commissioner’s decision is that of the Examiners in Chief and of the Examiner of Interferences, and consequently Swain has a heavy burden to overcome, if he would succeed in his appeal. Nicoll v. Hoey, 48 App. D. C. 245, and cases cited.

The issue count was taken from the application of one Baker, who for a time was a party to the interference, and must be read in the light of his specification. Funk v. Whitely, 25 App. D. C. 313; Bourn v. Hill, 27 App. D. C. 291, 294; Sobey v. Holsclaw, 28 App. D. C. 65; White v. Cottrell, 50 App. D. C. 269, 270 Fed. 877.

For conception and disclosure Booth relies on a drawing marked Exhibit 1, which was made March 24, 1917. It is claimed by Swain that this drawing does not disclose the invention. The drawing shows that the bottom section of the felly has pressed outward therefrom shallow recesses or sockets for the reception of the spoke ends. These recesses are in a broad sense concave or hollow, in that the metal is pressed out of its original plane. While the bottom of the socket is a plane, the side or edge wall surrounding it is curved, due to the method of forming it. The count merely calls for “closed, concave sockets.” The degree of concavity is not defined in the Baker application, which shows the bottom of the socket varying very slightly from a plane; the edge wall curvature being the same as in Booth’s exhibit.

It is said in behalf of Swain that the exhibit does not show the structure of sockets called for, and dictionary definitions of the word “concave” are resorted to for the purpose of supporting this assumption. One of the definitions given by the Standard Dictionary for the word “concave” is “hollow,” and Century Dictionary defines it as “presenting a hollow or incurvature.” The depression shown by Booth in the exhibit we are discussing is a hollow, and this satisfies the definitions of the dictionaries. Perhaps the word would admit of a narrower construction, which would be in accord with Swain’s contention; but we are not permitted to adopt it. On the contrary, a broad interpretation of the claim in issue is what the law requires. Speed v. Kirby, 50 App. D. C. 263, 270 Fed. 699, 700; Brenzinger v. Thornburgh, 52 App. D. C. 298, 286 Fed. 637. Booth is sufficiently corroborated as to the preparation of the exhibit and the date. His exhibit, we believe, discloses the invention. Therefore he is entitled to March 24, 1917, for conception and disclosure. He filed his application on April 30, 1917, and thus obtained a constructive reduction to practice. There is no claim that he was lacking in diligence. Swain did not conceive until April 17, 1917, and consequently must be held to have entered the field after Booth.

There is much in the record in support of Swain’s claim that he was not negligent in failing to reduce to practice before June, 1919; but, in view of what we have just said with respect to the dates to which Booth is entitled, it is not necessary for us to consider this.

As we have said, the count of the interference was< taken from the application of one Baker. This application did not appear in the record here, and a writ of certiorari was issued at the instance of Swain to bring up it and other parts from the record below. The specification and claims of the Baker application were necessary to enable the court to properly interpret the count of the issue, but more than was needed was called for by the writ and returned. In view of this, we think that each party should he taxed with one-half of the costs on the writ; and it is so ordered.

Believing that the Commissioner was right in awarding priority to Booth, we affirm his decision.

Affirmed.