¶1Patents <§=>l 12(4)—Claims of applicant held not materially different from claims awarded to another in interference.
¶2Claims of an application for a patent, rejected by the Patent Office, held not materially different from claims as to which another had been awarded priority over applicant in interference proceedings, though couched in different language, so that the applicant was not entitled to make them.
¶3<§ps>For other cases see same topic & KEY-NUMBER in -all Ke^-Numbered Digests & Indexes
¶4Appeal from the Commissioner of Patents.
¶5Application by Nicholas Power for a patent. From a decision of the Commissioner, rejecting the application, the applicant appeals.
¶6Affirmed.
¶7W. B. Morton, of New York City, for appellant.
¶8T. A. Hostetler, of Washington, D. C., for Commissioner of Patents.
¶10The Commissioner of Patents rejected the claims in issue for the reason that they are not patentable over the counts of an interference in which appellant was defeated. From the decision of the Commissioner this appeal was taken.
¶11It appears that a patent was issued to one Be Roy. Thereafter appellant filed the present application, copying seven claims from the Be Roy patent. Five of the claims were canceled, and an interference was declared between appellant and Be Roy with respect to the other two claims. In the interference appellant took no testimony, but relied upon an earlier application. Be Roy prevailed and was awarded priority-
¶12After careful examination we have reached the conclusion that the tribunals below were right in holding that the appealed claims, though couched in different language, are not materially different from the claims upon which Be Roy was awarded priority. Appellant, therefore, is not entitled to claims which are covered in terms by the invention to which Be Roy has been awarded priority.
¶13The decision of the Commissioner is affirmed.