Kirby v. Replogle

D.C. Circuit

Kirby v. Replogle

269 F. 864, 50 App. D.C. 212, 1921 U.S. App. LEXIS 2360

CourtCourt of Appeals for the D.C. Circuit

DecidedJanuary 3, 1921

DocketNo. 1350

StatusPublished

Cited by1 cases

This text of 269 F. 864 (Kirby v. Replogle) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kirby v. Replogle, 269 F. 864, 50 App. D.C. 212, 1921 U.S. App. LEXIS 2360 (D.C. Cir. 1921).

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Opinion

VAN ORSDEL, Associate Justice.

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.

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VAN ORSDEL, Associate Justice.

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.

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Bluebook (online)

269 F. 864, 50 App. D.C. 212, 1921 U.S. App. LEXIS 2360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirby-v-replogle-cadc-1921.

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