Home/Customs and Patent Appeals/Pelzer v. Weaver

Pelzer v. Weaver

97 F.2d 166, 25 C.C.P.A. 1232, 1938 CCPA LEXIS 121
CourtCourt of Customs and Patent Appeals
DecidedJune 6, 1938
DocketNo. 3979
StatusPublished
Cited by3 cases

This text of 97 F.2d 166 (Pelzer v. Weaver) 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
Pelzer v. Weaver, 97 F.2d 166, 25 C.C.P.A. 1232, 1938 CCPA LEXIS 121 (ccpa 1938).

Opinion

Hatfield, Judge,

delivered the opinion of the court:

This is an appeal in an interference proceeding from the decision of the Board of Appeals of the United States Patent Office affirming" the decision of the Examiner of Interferences awarding priority of invention of the subject matter defined in the single count in issue to Joseph B. Weaver-, appellee.

The invention relates to a process .of heating oil by means of furnace gases, as set forth in the count in issue which reads as follows:

A method of heating oil which comprises establishing a stream of furnace gases in heat exchange with surfaces in contact with said oil, removing the furnace gases from contact with said furnaces and recirculating withdrawn furnace gases to a plurality of places along said stream to modify the temperature of said stream at a plurality of separated points relative to its passage in contact with said surfaces.

[1233]*1233The interference is between appellant’s application No. 441,649, filed April 4,1930, and appellee’s patent No. 1,936,699, issued November 28, 1933 on an application, No. 142,420, filed October 18, 1926.

The count in issue originated in the Weaver patent.

Appellant is the junior party, and the burden was upon him to establish priority of invention by a preponderance of the evidence.

Appellee submitted no testimony, and is, therefore, restricted to his filing date, October 18,1926, for conception and constructive reduction to practice.

Appellant submitted considerable evidence for the purpose of establishing that he conceived and reduced the invention to practice prior to appellee’s filing date.

It is conceded by counsel for appellee that appellant “took testimony and showed that an operation was practiced at a pilot plant in East Chicago, and in the Houston refinery stills Nos. 141 and 142. The subject-matter of this operation is shown in Pelzer’s application, Serial No. 198,621, filed June 13, 1927, and if this operation reads upon the count of the interference, then priority of the subject-matter should be awarded to Pelzer, since this operation appears to have been practiced at least as early as June, 1926”; and that the process practiced by appellant as early as June 1926 is fully disclosed in Fig. 1-B of his application No. 198,621, filed June 13, 1921. (That application is not in this interference, and is referred to only because Eig. 1-B therein discloses the process practiced by appellant in 1926).

The sole issue in the case is whether the process practiced by appellant as early as June 1926, and which is disclosed in Fig. 1-B conforms to the invention defined in the appealed count. If it does, appellant is entitled to an award of priority and the decision of the Board of Appeals should be reversed. If it does not, appellee is entitled to an award of priority and the decision of the Board of Appeals .should be affirmed. The determination of that issue requires an interpretation of the language of the involved count.

It is well settled that generally counts in an interference should be given the broadest interpretation their language will reasonably permit. However, expressly defined limitations can not be ignored, and, in the event the language of the counts is susceptible of more, than one construction, the meaning to be given it must be that disclosed in the application or patent in which the counts originated. Ernest M. Brogden v. Henry B. Slater, 17 C. C. P. A. (Patents) 1240, 40 F. (2d) 988; In re Alexander M. Nicolson, 18 C. C. P. A. (Patents) 1468, 49 F. (2d) 961; Neumair v. Malocsay, 22 C. C. P. A. (Patents) 1349, 77 F. (2d) 622; Hausman v. Hochman, 23 C. C. P. A. (Patents) 1162, 83 F. (2d) 703.

[1234]*1234Appellee’s apparatus and process are clearly disclosed in his patent drawings, which, for the purpose of clarity, we reproduce.

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Bluebook (online)
97 F.2d 166, 25 C.C.P.A. 1232, 1938 CCPA LEXIS 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pelzer-v-weaver-ccpa-1938.