Home/Customs and Patent Appeals/Swengel v. Burkig

Swengel v. Burkig

455 F.2d 577, 59 C.C.P.A. 828
CourtCourt of Customs and Patent Appeals
DecidedMarch 2, 1972
DocketNo. 8626
StatusPublished
Cited by1 cases

This text of 455 F.2d 577 (Swengel v. Burkig) 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
Swengel v. Burkig, 455 F.2d 577, 59 C.C.P.A. 828 (ccpa 1972).

Opinion

Almond, Judge.

This is an appeal by the senior party Swengel from the decision of the Patent Office Board of Patent Interferences awarding priority in interference No. 95,848 ■ to Burkig and Richardson (Burkig), the junior. party. In issue are two counts corresponding to claims of a Burkig patent,1 copied by Swengel in his application.2

The subject matter in issue is a grid of interconnected electrical conductors suitable for use in interconnecting electrical components, such as- micro-size elements, in selected' different circuit networks. A particular network is obtained by severing selected conductors and selected tabs included in the interconnections between conductors. Further particulars will be apparent from count 1, reproduced'below as representative of the subject matter in issue:

[829]*8291. An electrical interconnection grid comprising a first plurality of electrical conductors, each having electrical continuity, a second plurality of electrical conductors, each having electrical continuity and crossing said first conductors and insulated therefrom, each conductor óf said second plurality of electrical conductors having a plurality of tab portions extending' therefrom and making-electrical contact with respective conductors of said first plurality of electrical conductors, circuits including selected portions of conductors and tab portions being obtained by severing conductors to leave said selected portions and severing tab portions from conductors excepting those tab portions forming part of said-circuits. ■

The' only substantive issue is Swfengel’s right to make the counts, which" issue was decided adversely to him after final hearing before the’ board. However, Swengel contends that Burkig was not entitled to final hearing on that issue, thus raising a preliminary matter the determination of which requires'review of the background of the proceedings.

The interference was declared as a result of the Board of Appeals reversing a rejection of claims in the Swengel application corresponding to the counts, which rejection was made by the examiner on grounds of lack'of supporting disclosure. Swengel] subsequently moved for judgment on the record under Patent Office Buie 225 3 on the ground that the Burkig preliminary statement did not' prima facie overcome Swfengel’s filing date. Burkig responded with a motion to dissolve the interference alleging that Swengel cannot make the counts. The patent- interference examiner dismissed Swengel’s motion for judgment as premature. He additionally deferred consideration of the motion to dissolve until final hearing to the extent that it was based on the same issues decided by the Board of Appeals,4 but he transmitted it to the primary examiner to determine issues not so decided, if any.

Swengel petitioned the Commissioner to review the action of the patent interference examiner. In deciding the petition, the Commissioner observed:

The entire question of right to make may be reviewed at final hearing by the Board of Patent Interferences, which will not be bound by the decision of the Boárd of Appeals, and it is thought to be desirable to handle the matter in that manner. ... - . -

[830]*830He then ruled:

The petition is granted and the Burkig et al. motion to dissolve is dismissed without prejudice to the right of that party to question, at final hearing,. Swengel’s right to make the counts.

When Burkig had not filed a request for final hearing within twenty days of the Commissioner’s decision, Swengel again moved under Buie 225 for judgment on the record. The board denied the Swengel. motion insofar as it is relevant here and set the case for final hearing on the question of right to make raised by the Burkig motion.

Swengel contends that the failure of Burkig to file a specific request for- final hearing on the motion to dissolve within the twenty days from the Commissioner’s decision barred final hearing on Swengel’s-right, to make. In response to his similar contentions below, the board reasoned that it was the clear intent of the Commissioner’s decision on petition that Swengel’s right to make be considered at finahhear-ing by the board. The board concluded that:

* * * there was no necessity that Burkig et al. request final hearing. We think that Burkig et al., relying on that decision, could reasonably expect that a final hearing would be set to consider their motion to dissolve without their filing a specific request to that end.

We see no error in the board’s treatment of this matter. The statements made by the Commissioner left reasonable grounds for Burkig' to expect that final hearing would be set on the matters raised by the motion to dissolve without a specific request by Burkig. It is unnecessary to determine whether, under the circumstances, the Commissioner’s decision constituted a decision “disposing” of the motion in the sense intended by Rule 225 hi requiring that a request for final hearing be made within twenty days. Even if it did, the board’s procedure was clearly justified on the ground that the circumstances provided a sufficient excuse for Burkig’s not making an express request. See Beecham Products Inc. v. Hawaiian Perfumers, Inc., 58 CCPA 1131, 440 F. 2d 1037, 169 USPQ 492 (1971).

Turning to the merits of the right to make issue, an example of a wiring framework in accordance with Swengel’s disclosure is shown in exploded perspective view in a part of Fig. 2 of his application reproduced below:

[831]

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Bluebook (online)
455 F.2d 577, 59 C.C.P.A. 828, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swengel-v-burkig-ccpa-1972.