360 F2d 836 Schindler v. Commissioner of Patents

360 F.2d 836

Walter SCHINDLER et al., Appellants,

No. 19706.

United States Court of Appeals District of Columbia Circuit.

Argued February 8, 1966.

Decided April 26, 1966.

Mr. Caspar C. Schneider, Jr., New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Mr. William A. Smith, Jr., Washington, D. C., was on the brief, for appellants.

Mr. Jack E. Armore, Atty., U. S. Patent Office, with whom Mr. Joseph Schimmel, Acting Solicitor, U. S. Patent Office, was on the brief, for appellee.

Before FAHY, Circuit Judge, BASTIAN, Senior Circuit Judge, and BURGER, Circuit Judge.



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This cause came on to be heard on the record on appeal from the United States District Court for the District of Columbia, and was argued by counsel, and it appearing to this Court, contrary to the finding of the trial court, that there is evidence in the record of comparative tests relating to anti-depressant activity of the compound of Claim 8 and that of Example 2 of the Schindler, et al. patent which is of legal significance, and that the original description does support a proffer that the compound of Claim 8 has anti-depressant properties,


Now, therefore, this Court retains jurisdiction in this appeal; and it is


ORDERED by the Court that the record on appeal herein be remanded to the District Court with directions:


(1) that it consider such evidence, described above, with such additional evidence as in its discretion and at the request of the parties it might permit to be adduced; and


(2) that it supplement the record with new findings of fact and conclusions of law, and return the enlarged record to this Court in this case.


We express no view on the merits of the appeal nor as to the effect, if any, of the above described evidence.