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FISH v. DYSON.

(Court of Appeals of District of Columbia.

Submitted January 15, 1925.

Decided February 2, 1925.)

No. 1702.

1. Patents ■§==>! l2(!)_Adjudication in prior interference held not res judicata as to diligence at different time.

Adjudication in prior interference is res judicata in subsequent interference proceeding between same parties as to all questions put in issue and determined, but is not determinative of question whether party was diligent prior to certain date, where prior interference covered an earlier period.

2. Patents <®=>97 — Rules of Patent Office have force of law.

Patent Office rule No. 116, as to presumption and burden of proof respecting date of invention, and rule 117, providing that tbe preliminary statement cannot be used as evidence, have the force of law.

3. Patents <§=91 (4) — Evidence held to establish diligence of one party at and prior to other’s date of filing.

In interference proceeding, proof that one party’s 11 sheets of drawings were completed about May 20th, and that their preparation must have required several weeks, held to establish diligence at and just prior to May 19th, on which date other party filed application.

4. Patents <®=l 13(6) — -Party to interference, who introduced no evidence to prove conception prior to filing date, restricted to such date.

Party to interference proceeding, who introduced no evidence of conception of invention prior to date on which his application was filed, could not, on appeal, complain of Patent Office ruling that he was restricted to filing date for conception and reduction to practice.

Appeal from Commissioner of Patents.

Interference proceeding between Herbert L. Fish and Alfred H. Dyson. Prom concurrent decisions awarding priority of invention to tbe latter, tbe former appeals.

Affirmed.

C. D. Davis, of Washington, D. C., and W. A. Scott and C. M. Candy, both of Chicago, 111., for appellant.

G. A. Yanochowski, of Chicago, 111., for appellee.

Before MARTIN, Chief Justice, ROBB, Associate Justice, and BARBER, Judge of tbe United States Court of Customs Appeals.

ROBB, Associate Justice.

Appeal from concurrent decisions of the Patent Office tribunals awarding priority of invention to tbe party Dyson.

Pish has taken no testimony, and tbe Patent Office has held that he was restricted to bis filing date of May 19, 1906, for conception and reduction to practice. He makes two contentions here: (a) That tbe decision in tbe prior interference between tbe same parties and involving Dyson’s present application is determinative of tbe issue here; and (b) that, if it-be presumed that because Dyson’s 11 sheets of drawings were completed on May 20, 1906, be must have been diligent prior to and on the filing date of Pish, or May 19, 1906 (the evidence showing that he had conception of tbe invention long prior to that date), then it must also be presumed that Pish conceived the invention prior to his filing date.

[1] As to tbe first proposition, there can be no doubt that the prior adjudication is res adjudicata as to all questions put in issue and determined there. . But this abstract statement is not determinative of the question propounded, because in tbe prior interference there was involved the question of Dyson’s diligence from about tbe middle of February of 1906 to tbe middle of May of that year. In the present interference, however, if Dyson was diligent just prior to May 20th, he must prevail, unless tbe second proposition advanced by Pish is sound.

[2] Coming to that second proposition, we are met with rules 116 and 117 of the Patent Office, which have the force of law. Rule 116 declares that the parties to an interference will be presumed to have made the invention in tbe chronological order in which they have filed their completed applications, and that “the burden of proof will rest upon the party who shall seek to establish a different state of facte.” Rule 117 provides that “the preliminary statement can in no case be used as evidence in behalf of the party making it.”

[3,4] Dyson introduced proof that his eleven sheets of drawings were completed about May 20th and that their preparation must have required several weeks. The Patent Office found, and in that finding we concur, that this evidence satisfactorily established diligence at and just prior to the filing date of Pish. Had Pish desired to prove conception prior to his filing date, it was incumbent upon Mm to introduce evidence to that end. Having deliberately elected to stand upon his filing date, he is in no position here to challenge the ruling of the Patent Office. Moreover, even though we indulged the presumption urged, we could not say,,in the absence of proof, that Pish had conception and commenced his drawings prior to the commencement of Dyson’s drawings.

The decision therefore is affirmed.

Affirmed.

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