Cover v. Schwartz

Customs and Patent Appeals

Cover v. Schwartz

116 F.2d 512, 28 C.C.P.A. 831, 48 U.S.P.Q. (BNA) 110, 1941 CCPA LEXIS 20

CourtCourt of Customs and Patent Appeals

DecidedJanuary 6, 1941

DocketNo. 4371

StatusPublished

This text of 116 F.2d 512 (Cover v. Schwartz) is published on Counsel Stack Legal Research, covering Court of Customs and Patent Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cover v. Schwartz, 116 F.2d 512, 28 C.C.P.A. 831, 48 U.S.P.Q. (BNA) 110, 1941 CCPA LEXIS 20 (ccpa 1941).

Pincite

Opinion

Bland, Judge,

delivered the opinion of the court:

This is a patent interference proceeding in which the appellant, Cover, has appealed from the decision of the Board of Appeals of the United States Patent Office which affirmed the decision of the Examiner of Interferences in awarding to appellee, Schwartz, priority of invention in eight counts involved in the interference.

The counts originated as claims in patent 2,065,304, issued to Cover December 22, 1936, and, at the instance of the Primary Examiner, were copied, on June 15,1937, by Schwartz, for the purpose of inter[832]*832ference, in bis application for patent which had been filed January 25,1937.

The invention relates to a respirator adapted to being worn over the nose and mouth to protect the wearer from dust, smoke, noxious gas, etc. The applications of both parties relate to a structure comprising a body portion which is provided with an exhaust valve and an intake port, the intake port having filter means which include a corrugated or uneven-surfaced plate .for the admission of >ai-r which travels from the filter means to the face of the wearer of the respirator. A more detailed explanation of the involved invention is set out in the counts and will appear in the discussion of the several issues which follows.

We regard counts 1, 2, and 3 as illustrative of the appealed counts. They follow:

1. In a respirator, a foody portion bavins; an exhaust valve and an intake port, said intake port bavins filter means comprising a corrugated plate, an aperture in said plate registering with- said intake port, and a filter, pad secured to said plate over said aperture.

2. In a respirator, a foody portion having an exhaust valve and an intake port, said intake port having filter means comprising a plate, an aperture in said plate registering with said intake port, and a filter pad secured to said plate over said aperture, said plate having a plurality of raised portions adapted to provide a space between said pad and plate.

3. In a respirator, a foody portion having an exhaust valve and an intake ' port, said intake port having filter means comprising a plate, an aperture in said plate registering with said intake port, and a filter pad over said aperture, said plate having its periphery curved inwardly to form means to secure said filter pad thereto.

Cover is the senior party. He filed his application for patent on January 9, 1936, his patent issuing, as aforesaid, on December 22, 1936. The junior party > Schwartz filed his application- on January 25, 1937. The burden was therefore upon the junior party to prove beyond a reasonable doubt that he was the first inventor. Schwartz assumed this burden and introduced many exhibits (some of which are not pertinent here) and much testimony relating to the development of his device. Cover took testimony and undertook to prove by certain exhibits, consisting of drawings, patents, and other documents, and finished respirators, that he had conceived and reduced the invention to practice earlier than any date claimed by Schwartz.

The Examiner of Interferences analyzed the Schwartz testimony and held that he was entitled to a conception date of February 7, 1935, and that he had reduced to practice on December 3, 1935, which latter date is the filing date of an application, serial number 52,627, forming part of Schwartz’ Exhibit M, hereinafter discussed.

[833]*833The tribunals below carefully ¡considered the Schwartz record and after holding that he had reduced the invention to practice by the filing of the application in Exhibit M, definitely held that he had not otherwise reduced the invention to practice until he filed his instant application on January 25,1937. While we disagree with the board as to its conclusions respecting said Exhibit M, we are in agreement with it in its findings that the remainder of the Schwartz record does not show any reduction to practice of the invention involved in the counts prior to the filing- of the application at bar on January 25, 1937.

It is our view that the date of Schwartz’ conception — February 7, 1935 — is unimportant in view of our Conclusion that the application in Schwartz’ Exhibit M did not disclose the invention of the involved counts, and we are also of the opinion that the Schwartz record does not support a finding (nor does he contend for it here) that there was any diligence on his part beginning with the critical period and continuing to the date of the filing of his application here involved, which, as before stated, was on January 25, 1937.

The Patent Office tribunals also carefully went into the Cover record, examined his proofs, and held that he was not entitled to any date for conception or reduction to practice earlier than the said filing date (January 9, 1936) of his application which ripened into said patent 2,065,304.

In view of our conclusion, it is unnecessary for us to consider the Cover testimony since the application which ripened into the Cover patent was filed on a date prior to any date to which Schwartz is entitled for reduction to practice.

The Examiner of Interferences held, and the board approved his holding, that Exhibit M clearly disclosed every element of the counts involved, and as we see it the controlling issue for us to now decide is whether or not the board erred in this.respect.

The Patent Office permitted Schwartz to amend the application in Exhibit M by substituting certain new drawings which Cover contends contain new matter. In view of our conclusion that Schwartz did not in the application in Exhibit M, either before or after said amendment, disclose certain elements of the involved counts, it is unimportant to further consider this issue. The drawings, however, are herewith reproduced in order that the exact position of the parts hereinafter discussed may be fully understood.

[834]

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