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POWELL v. McNAMARA.

No. 167.

Circuit Court of Appeals, Second Circuit.

Jan. 7, 1935.

Thomas L. Wilder, of Utica, N. Y., for plaintiff-appellant.

Ambrose J. McNamara, in pro se.

Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

CHASE, Circuit Judge.

On November 28, 1927, the plaintiff filed an application in the Patent Office, serial No. 236098, for a patent for an improvement in mufflers used to deaden the noise made by the exhaust from a gasoline engine* The defendant filed his application for a patent on the same improvement on January 18, 1928, serial No. 247550, and an interference was declared. After a hearing before the Examiner of Interferences, priority of invention was awarded to the defendant. The plaintiff’s appeal from that decision to the Board of Appeals in the Patent Office resulted in an affirmance, and the plaintiff then took an appeal to the Court of Customs and Patent Appeals. Thereupon the defendant gave due notice in accordance with section 4911, Rev. St., as amended (35 USCA § 59a), that he elected to proceed under section 4915, Rev. St. (35 USCA § 63), and the plaintiff filed the bill of complaint in this suit in the District Court for the Northern District of New York. Both parties reside in that district.

The plaintiff introduced some evidence in the trial below which was not in the proceedings in the Patent Office, but the defendant produced only the record there made. The court found that the evidence did not substantially differ from that before the Examiner of Interferences and the Board of Appeals in the Patent Office, and this finding was so clearly right that we accept it without further comment. That fact alone requires affirmance of the decree. In order to prevail in this suit in the face of the adverse decisions in the Patent Office, it was incumbent upon the plaintiff to produce evidence making it convincingly clear that a mistake had been made in awarding priority of invention to the defendant. Morgan v. Daniels, 153 U. S. 120, 14 S. Ct. 772, 38 L. Ed. 657. Far from so doing, the plaintiff has submitted a record which amply supports the decision that the defendant is entitled to priority as the trial court has found.

It appears that the defendant was an employee of the Powell Muffler Company when he invented the improvement in mufflers, but the question of what rights his employer may have because of that is not now before us.

Decree affirmed.

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