In re Mattullath

46 App. D.C. 143, 1917 U.S. App. LEXIS 2517

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 5, 1917
• Docket: No. 1073
• Status: Published

Opinion

Mr. Justice Robb

delivered the opinion of the Court:

This is an appeal by Meta Mattullath, administratrix of' Hugo Mattullath, from a decision.of the Commissioner of Patents rejecting ten claims of an application for patent. Claims 1, 3, and 10 are here reproduced:

“1. In a flying machine, the combination with a supporting body and the aeroplane mounted thereon of supporting stanchions composed of vertical uprights, keels of hollow ship-shaped cross section united at a distance apart by a vertical series of transverse members constituting aeroplanes and stiffening members.”

“3. In a flying machine of the character described, the herein described means for promoting its lateral stability during flight, the same consisting in the combination with the fixed supporting aeroplanes thereof of two boat-shaped cars extending longitudinally of the flying machine adjacent to. its outer edges, said boats being widely separated and dividing between'them the principal part of the weight so as to increase the moment of inertia of the vessel.” .

“10. In a flying, machine of the aeroplane type, the combination of a plane supporting means, elevation, controlling means movable about a transverse horizontal axis of the machine, laterally arranged stabilizing means positioned on opposite sides of tiie longitudinal axis of said machine, and a steering rudder operatably connected with said machine.”

The alleged invention, as will be gathered from a reading of the above claims, relates to a heavier-than-air flying machine, and the rejection was on the ground of inoperativeness. About 1903 the application was beld abandoned for failure to respond to Office action witliin the year provided by law. Several years later, upon the refusal of the Commissioner to grant a petition to revive it, an appeal was taken to this court, and we ruled that there had been no abandonment and therefore reversed the decision of the Commissioner, “with direction to set aside the order of abandonment and reinstate the application.” Re Mattullath, 38 App. D. C. 497. It now is urged that our decision involved the question of operativeness, and hence is res judicata here. The fallacy of this contention soon will become apparent. The Office bad ruled that the application was abandoned for fail-uric of the applicant properly to respond to Office action. A petition was addressed to the Commissioner to revive the application,, and the only question before this Court was whether the Commissioner erred in refusing that petition. A reversal of his decision simply established the status quo; in other words, it re-established the situation at the time of the alleged abandonment. The question of operativeness had not been passed upon by the Examiners in Chief or the Commissioner, and was neither involved nor passed upon here.

Each of the three tribunals of the Patent Office has very carefully and satisfactorily stated the reasons for the rejection of these claims, and as it would servo no useful purpose to repeat them we shall not do so. It is enough to suggest that in our opinion appellant is attempting to read into the application the wonderful development that has taken place in this art since the filing of this application.

The decision is affirmed.

Affirmed.