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KIRBY v. REPLOGLE.

(Court of Appeals of District of Columbia.

Submitted November 15, 1920.

Decided January 3, 1921.)

No. 1350.

Patents ©=>113(8)—Senior party awarded priority on two counts on which interference was dissolved.

Where the Commissioner of Patents awarded priority of invention to R. as to two counts of an interference, but dissolved it as to other counts, holding two of said counts not patentable over the issue of another interference to which R. was a party and in which priority of invention was decided against him. Hold that, where both interferences were appealed, and R. was successful in both cases, he was entitled to an award of priority on said two counts, as well as on the others.

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.Appeal from the Commissioner of Patents.

Interference proceeding between James B. Kirby and Daniel B. Replogle. From a decision of the Commissioner of Patents, awarding priority on two counts to Replogle and dissolving the interference as to the other four counts, Kirby appeals. . Reversed as to two of the counts as to which the interference was dissolved, and affirmed as to the other counts.

Harold E. Smith, of Cleveland, Ohio, and George E. Tew, of Washington, D. C., for appellant.

Daniel Benson Replogle, of Berkeley, Cal., pro se.

VAN ORSDEL, Associate Justice.

This is a companion case to Replogle v. Kirby (No. 1327) — App. D. C. —, 269 Fed. 862, decided this day. The cases were heard together. It is unnecessary to set out the counts of the issue, inasmuch as, with the exception of one point hereafter considered, we approve the disposition of the case made by the Commissioner of Patents. The issue is in six counts. The Commissioner awarded counts 2 and 3 to Replogle, and dissolved the interference as to counts 1, 4, 5 and 6. The Commissioner, however, in his opinion states Fiat—

“Counts 5 and 6 are clearly unpatentable over Noguchi and should never have been included in this interference. Kirby has been defeated in an interference with Noguchi and of course cannot be granted these claims, and unless Replogle wins in the Replogle v. Noguchi interference, he cannot be allowed these claims. This interference therefore is dissolved as to counts 1, 4, 5 and 6.”

Inasmuch as we have held in the former case that Replogle is entitled to priority over Noguchi, it follows that he should also be awarded counts 5 and 6.

The decision is affirmed as to counts 1, 2, 3 and 4, and reversed as to counts 5 and 6.

Affirmed as to counts R 2, 3 and 4, and reversed as to counts 5 and 6.

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