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ENGLE v. MANCHESTER & SPOONER. SAME v. MANCHESTER (two cases).

(Court of Appeals of District of Columbia.

Submitted November 14, 1919.

Decided January 5, 1920.)

Nos. 1262-1264.

Patesxs <&wkey;91(4) — Evidence sustains senior party in intebmrenoe proceedings.

In patent interference proceedings over an electric battery, evidence regarding the junior party’s acquiescence in statements that the senior party was the inventor, etc., held to establish, contrary to the Assistant Commissioner’s decision, that the senior party was entitled to priority.

Appeal from a Decision by the Assistant Commissioner of Patents.

Patent interference proceeding between George S. Engle' and Manchester & Spooner, and two similar proceedings between George S. Engle and Arthur P. Manchester. From a decision awarding priority to the junior parties, George S. Engle appeals.

Reversed.

Vernon E. Hodges, of Washington, D. C., for appellant.

A. S. Steuart and Melville Church, both of Washington, D. C., for appellees.

SMYTH, Chief Justice.

This is an appeal from a decision of the Patent Office awarding priority in three interference proceedings — to Manchester and Spooner in No. 1262, and to Manchester alone in Nos. 1263 and 1264. Engle is the senior party, having filed some two months before the others. The subject-matter of each interference is so closely related to that of the others that the three have been submitted on the same record, and they shall he disposed of as one case.

The invention concerns an electric battery, and the claims of the issue are illustrated by the following:

No. 1262.

I. An electrode for batteries composed of oupric oxide (GuO) and cuprous oxide (Cu20).

5. An electrode for batteries formed, of cupric oxido and cuprous oxide in tlie form of scales of appreciable size bonded together and compressed into a dense bard mass.

II. The process of producing a copper oxide electric battery element consisting in forming flakes of black or cupric oxide of copper carrying therewith portions of unoxidized copper and treating the said flakes to eliminate any unctuous matter therefrom, thoroughly mixing the flakes carrying the portions of unoxidized copper with a binder and pressing the mass thus produced into a desired shape so that the black or cupric oxide of copper and portions of the metallic copper will be regularly distributed throughout the body o£ the pressed mass, then subjecting the compressed mass to the action of heat until the compressed mass is cured and the binder reduced to a minimized residuum, then placing the compressed mass carrying the minimized residuum of the binder in the oven and subjecting the said mass to a high degree of heat to first bum out the hinder residuum and next to change the metallic copper within the body of the mass of cuprous oxide removing the mass now composed of cupric and cuprous oxides of copper from the baking oven and again compressing the sa; íe while red with heat, and finally allowing the plate to cool in the air.

*646No. 1263.

1. A gelatinous alkaline electrolyte for primary batteries formed of an alkaline hydroxide of approximately 28° gravity Baume with which vegetable starch is combined at a temperature of approximately 180° ,F. and in quantity substantially less than that required to gelatinize an equal quantity of water.

No. 1264.

1. The herein described process of making an alkaline gelatinous electrolyte, consisting in thoroughly mixing a caustic alkaline solution comprising about one part of starch to ninety parts of the solution and thoroughly stirring the two components, subjecting the mixture of alkaline solution and starch to a degree of heat less than that required to boil the mixture to avoid the liberation of the constituents of starch that would have a tendency to harden the electrolyte, and allowing the mixture to cool to a pouring consistency.

Appellant was successful before the Examiner of Interferences and the Board of Examiners, but failed before the Assistant Commissioner. Originality is the crux of the dispute, and the question for decision is one of fact. Manchester and Spooner, being junior parties, must overcome the claim made by Engle, or they cannot succeed. All the parties worked together in the same house upon the invention. Manchester and Spooner assert that they were partners with Engle; that he was merely a promoter and legal adviser, but supplied none of the inventive ideas, while Engle says that Manchester and Spooner were employés of his; that he furnished the funds necessary to carry on the work, and also the ideas embodied in the invention.

The testimony is a tangled web of contradictions; none the less there are certain things in it which stand out prominently and point to the right direction for the investigator. One of the witnesses called by Manchester and Spooner refers to the battery throughout his testimony as Engle’s and speaks of Spooner as Engle’s workman, though he later tried to change his testimony on the latter point. Spooner, without dissent, witnessed a contract, after it had been read- to him, in which Engle was represented as the inventor, and both Manchester and Spooner knew that Engle was going to file an application for a patent on the invention, b.ut neither objected. Indeed, Engle was distinctly asked in the presence and hearing of Manchester at the time his application for a patent was being prepared as to whether he (Engle) was the sole inventor, or a joint inventor with Manchester, and he answered that he was the sole inventor. Manchester did not deny it, but acquiesced in the answer by his silence. Perhaps this conduct on the part of Manchester and Spooner may be explainable in harmony with their claim of inventorship. They attempt to show that it is by saying that they were misled hy Engle, who, they assert, gave them to understand that he was the proper one to make the application, and that he would, after having obtained a patent, recognize their interests in it. This may he correct, but it is difficult to accept it, for it means that they, knowing they were the inventors and that Engle was not, made no protest against his pretensions. They would have to be far less intelligent than the record shows them to be before we could believe that they did not understand that a person who is not an inventor cannot, under the statute, obtain a patent. These things, in connection with others in the record, tend to establish with much force that *647Manchester and Spooner have not sustained the burden of proof imposed upon them by the law. With great care the Examiner of Interferences and the Board of Examiners have analyzed the testimony in their respective opinions. We are entirely satisfied with their reasoning, and therefore the decision of the Assistant Commissioner must be reversed, and priority of the subject-matter involved in the three interferences awarded to Engle.

Reversed.

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