Wahl v. Wright

273 F. 766, 51 App. D.C. 38, 1921 U.S. App. LEXIS 1542

Opinion

ROBB, Associate Justice.

Appeal from a decision of the Patent-Office in an interference proceeding awarding priority of invention to the junior party, Wright.

The invention is based upon practically the same structure as was involved in the prior interference, No. 1346, but is narrower in scope. It originally contained four counts. The Examiner of Interferences, being of the view that the question as to Wahl’s right to tnake the claims had been foreclosed by a prior decision of the Examiners in Chief, awarded priority to him without considering that question. The Examiners in Chief found that this was a misconception of their former decision, and, considering the question de novo, ruled that Wahl was not entitled to make the claims. They therefore awarded priority to Wright. The Commissioner sustained the Board, except as to count 3, and accordingly awarded priority as to that count to Wahl, and priority as to counts 1, 2 and 4 to Wright.

[1, 2] These claims relate to a complicated mechanism, and under our rule error must clearly appear to warrant a reversal of the Patent Office. The counts call for a follower whose position is posi tively determined by the level of the cam tracks. Wahl has two followers, and the Commissioner points out that, if the claims he so liberally construed as to read on his disclosure, a similar liberal construction would read on a prior application of Wright. We cannot say, therefore, that the limitation is an arbitrary one, and, not being clearly convinced that the Patent Office has erred, we affirm the decision.

Affirmed.