Taylor v. Lowrie

27 App. D.C. 527, 1906 U.S. App. LEXIS 5197

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 3, 1906
• Docket: No. 329
• Status: Published

Opinion

Mr. Justice Duell

delivered the opinion of the Court:

This is an appeal from the decision of the Commissioner of Patents awarding priority of invention to Wilhelmina M. Low-Tie of the following issue:

“A garment adjuster or fastener comprising a body, an attaching shank depending from said body and provided with means for attaching it to a supporting garment, a hook arranged ;at the lower central portion of the body for engaging the shirt waist, a pair of hooks- arranged above and at opposite sides •of said shirt waist hook for engaging the dress skirt, and a hook for holding the belt, substantially as set forth.”

This is the companion appeal referred to in our decision in Lowrie v. Taylor, ante, 522, decided at the present term of the court. The facts relating to the controversy leading up to this appeal have been there set forth, and will not be here repeated. The Examiner of Interferences awarded priority of invention of this issue to Taylor and Taylor, while the Examiners-in-Chief and the Commissioner of Patents have found in favor of Lowrie.

All of the tribunals, however, have agreed in finding that Taylor and Taylor have offered no testimony other than their own, tending to prove conception by them prior to February 7, 1901. That joint applicants involved in an interference cannot prove their case by their own unsupported testimony has been determined by this court in Garrels v. Freeman, 21 App. D. C. 207, and in cases there cited. If, therefore, the evidence presented on behalf of Lowrie warrants a finding that prior to February 7, 1901, Lowrie had conceived, disclosed, and reduced to practice the issue of this interference, or had conceived and disclosed the same, and was proceeding with diligence to reduce the same to practice, at the time when Taylor and Taylor entered the field, then the priority must be adjudged in favor of her, and the decision of the Commissioner affirmed.

As we have said, the Examiners-in-Chief and the Commissioner of Patents have both found in favor of Lowrie. But they have based their decision upon different grounds. The Examiners-in-Chief have found that in August, 1900, a device embodying the subject-matter of this interference was made for Lowrie; and that device, known as Lowrie’s Exhibit No. 1, is in evidence. They hold that this Exhibit No. 1 constitutes a valid reduction to practice.

The Commissioner of Patents bases his decision upon the fact that two days prior to February 7, 1901 (the earliest date that can be given to Taylor and Taylor), Lowrie had secured a design patent, No. 34,022, which disclosed the invention of this issue.

We are of the opinion that the conclusion arrived at is correct, whether based upon either or both grounds. While agreeing with the Commissioner of Patents that the issue of the design patent to Lowrie entitles her to a judgment in these proceedings, we prefer to base our decision upon the ground adopted by the Examiners-in-Chief. We believe that Lowrie’s Exhibit No. 1 constitutes a valid reduction to practice, and we have given our reasons for this conclusion in the opinion rendered in the cross appeal of Lowrie v. Taylor, [ante 522].

Finding no error in the decision appealed from, it will be affirmed. It is so ordered, and this decision is to be certified to the Commissioner of Patents, as the law provides.

Affirm,ed.