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appear, however, that he was examined upon the matter of the origin of the cross-head construction.
Whether the first suggestion of the desirability of the cross-head came from Harmer or from Maker, it is thought that under the circumstances presented and for the purposes of this case it must inure to the benefit of Ohlsen. Admittedly Ohlsen originated the most of the improvements and was the main worker and expert in the art. If the suggestion of the cross-head came from Maker, the testimony shows that Ohlsen was in possession of the invention before any date that Harmer had it. If Harmer suggested this feature to Ohlsen, the testimony shows that Ohlsen worked it out and embodied the feature in the valve. A fiduciary relationship existed between Harmer and Ohlsen, due to the partnership arrangement whereby Harmer was to assist in promoting the invention. Under such circumstances it appears to be well settled that if the suggestion of a single feature of the improvements comes from one partner the principal inventor is entitled to the benefit of the suggestion.
In the case of Jackson v. Summerfield (C. D., 1904, 403; 112 O. G., 1212) it was held:
It is very clear from this contract that Jackson was to make the inventions and secure the patents and that he and Summerfield were to share equally in the benefits. It was clearly not a mere license, as contended by Summerfield. It was a partnership arrangement for their mutual benefit, and it was clearly not contemplated that Summerfield should secure a patent as a result of the work under the contract, and thereby exclude Jackson from all benefit.
In the case of Kirkegaard and Jebsen v. Ries (C. D., 1906, 485; 125 O. G., 1700) it is stated :
Kirkegaard admits discussing with Ries the structure of his bottle-stopper disclosed in his patent, but denies that Ries made any suggestions to him relative to the structure of the stopper in issue except as to the narrow slot, In regard to this feature it is shown by Kirkegaard that he had in his possession prior to his conversation with Ries a patent to one Harris in which a camlever having a narrow double-acting slot is disclosed. It is of little consequence whether Kirkegaard and Jebsen obtained a suggestion as to the form of the operating-slot from Ries or from the Harris patent, as this feature is only one element of the structure embodied in the combination defined by the issue. Furthermore, Ries on cross-examination (X-Q. 271-337 and 351) admits that Kirkegaard independently followed his own ideas as to the mechanical details and acted in the capacity of a subsequent inventor.
In the case of Gedge v. Cromwell (C. D., 1902, 514; 98 O. G., 1486; 19 App. D. C., 192) the Court of Appeals of the District of Columbia said:
The rule is that one, who, by way of partnership, or contract, or in any other, empowers another person to make experiments upon his own conception for the purpose of perfecting it in its details, is entitled to the ownership of such improvements in the conception as may be suggested by such other person. And we do not understand that the exceedingly liberal policy of the Patent Office in the allowance of independent patents for minute improvements is to be regarded as contravening this rule. Independent inventors may not come within the scope of the rule.
It clearly appears that this is a case of originality rather than priority of invention. In such cases the surrounding circumstances. and conduct of the parties is entitled to great weight. The conduct of Harmer throughout is inconsistent with his claims of inventorship. Tell, the vice-president and general manager of the National Brake & Electric Company, testified that at the time he interrogated Ohlsen the latter stated that Harmer had nothing whatever to do with the actual invention of the valve. (Q. 58, X-Q. 161.) Tell further testified that during the several talks he had with Harmer the latter never claimed that he was the inventor or that Ohlsen was not the inventor, although he had abundant opportunity to do so. (RD. Q. 195, 202.)
No error is found in the decision of the Examiners-in-Chief, and it is affirmed.
WEINTRAUB v. HEWITT.
Decided July 22, 1909.
148 0. G., 1087.
INTERFERENCE-PRIORITY-RIGHT TO MAKE THE CLAIMS.
Where the claim in issue specifies separate sources of current connected to a plurality of electrodes of a mercury-vapor device and H. shows separate phases of a polyphase generator connected to the respective electrodes, Held that he has a right to make this claim, (citing Westinghouse Electric
Mfg. Co. v. The New England Granite Co., 110 Fed. Rep., 753.) APPEAL from Examiners-in-Chief.
OPERATING VAPOR ELECTRIC LAMPS FROM AN
Mr. Albert G. Davis for Weintraub.
Mr. Charles A. Terry and Messrs. Duell, Warfield & Duell for Hewitt.
This is an appeal by Weintraub from the decision of the Examiners-in-Chief affirming the decision of the Examiner of Interferences awarding priority to Hewitt on the following issue:
The combination of an hermetically-sealed inclosing chamber, a gas or vapor path therein, a plurality of positive electrodes and a common negative electrode, each of the positive electrodes being connected with a separate source of current.
The invention in issue and the structures of the respective parties are described as follows in the decision of the Examiners-in-Chief:
The invention involved in this intereference is an apparatus adapted for use either as a lamp or as a rectifier for alternating currents. In order that such
a device may be effective it bas been found essential that the negative electrode be continually excited by the passage of a current and that if this current cea ses for any reason the lamp is extinguished. There can be no question that both parties show such apparatus in which this condition of continuous excitation of the negative electrode is maintained, but the devices are specifically different. Each instrument contains a plurality of anodes and a single cathode, the latter coacting with each of the anodes. Weintraub has a source of alternating current connected between one anode and the cathode which furnishes the main current and an additional source of current, which is direct or continuous, connecting the other anode to the cathode, so that whatever the condition of the source of alternating current a direct current is constantly maintained. Hewitt on the other hand has each of his anodes connected to an individual or distinct coll of a polyphase generator of alternating current, the currents supplied to the several anodes being so related in phase that the impulses overlap; that is to say, conjointly they continually supply current to keep up the excitation of the cathode.
The date of conception alleged in Weintraub's preliminary statement is subsequent to Hewitt's filing date; but it is contended on behalf of Weintraub that priority should be awarded him for the reason that Hewitt is not entitled to make the claim corresponding to the issue. This contention is based on the ground that Hewitt does not disclose a separate source of current for each of the positive electrodes.
Each of Hewitt's positive electrodes is connected with one of the coils of a polyphase generator, and Weintraub contends that these coils are not separate sources of current. The claim corresponding to the count was first made by Hewitt in a later application than the one involved in this interference and was afterward transferred to the earlier application and was suggested to Weintraub for purposes of interference. It appears that in this later application Hewitt discloses not only the form shown in the present application, but a form corresponding to that of Weintraub, in which a direct current connecting one of the positive electrodes with the negative electrode was used for the purpose of keeping the lamp or rectifier alive.
When the claims were first made, the Examiner then in charge of the case held that this claim was for a different species from certain other claims, which did not call for separate sources of current for each of the electrodes. This view, however, was not taken by the Examiner in charge of the case at the time that the claim was presented in the present application. On a motion to dissolve based on the ground that Hewitt had no right to make this claim he held that the claim could be made by Hewitt, and in his decision made the following statement :
It is thought that Hewitt clearly has a right to make the claims involved in counts 1 and 2. Weintraub uses a single-phase current and has a separate positive electrode and common negative electrode connected in a battery-circuit, while Hewitt has his separate positive electrodes connected with the different parts of a polyphase generator. The same broad result is accomplished by
both constructions, viz., a separate current traversing the rectifier to the negative electrode during the operation of what may be termed the main current. It is thought in this broad sense, and especially in view of the decision of the court of appeals on the Tesla polypha se patents, that Hewitt's sources of current are separate within the usual meaning given to that word in the art of electricity, and that he has a right to make the claims corresponding to counts 1 and 2 in the application involved in this interference.
The Examiners-in-Chief, after stating the grounds of Weintraub's contention, said:
There is no art before us which leads to the conclusion that the count in the interpretation contended for by Hewitt would be unpatentable. Weintraub, however, points out the advantage in his construction that if the main current for any reason falled and was then reëstablished the operation of the device would be immediately renewed, whereas in Hewitt's device if the current through one of the anodes were interrupted from any cause the action of the lamp would be stopped even though the interrupted current were renewed. This difference of action is not questioned but, as it appears to us, it depends not on the fact that the source of secondary current in the Weintraub device is separate in a fuller sense than in the Hewitt device but by reason of the character of the subsidiary current in that it is continuous. To make this point more clear, it is obvious that if a source of alternating current were substituted for the direct generator of Weintraub his lamp or rectifier would be open to the same objection which he has raised to that of Hewitt. It is true that Hewitt's sources of current form part of a single machine, to wit: a polyphase generator, but each coil is as much a source of separate current as though it were separately mounted either on the same shaft or on a shaft driven by a different motor, and the device would operat in the same way so long as the necessary phase relations were maintained. The issue is not concerned with separation in a bodily sense but only as regards the function of the sources.
This holding is believed to be right. It is argued on behalf of Weintraub that the decision in the Tesla case referred to by the Primary Examiner is no authority for holding that the coils of Hewitt's polyphase generator are " separate ” sources, for the reason that in this decision reference was made to the following clause contained in one of the patents involved:
By "independent" I do not mean to imply that the circuits are necessarily isolated from one another, for in some instances there might be electrical connections between them to regulate or modify the action of the motor without necessarily producing a new or different action.
Both the circuit court and the circuit court of appeals referred to this clause of the patent, and in the decision of the latter (Westinghouse Electric Mfg. Co. v. The New England Granite Co., 110 Fed. Rep., 753) the following statement is made with reference thereto:
The meaning of the clause is that independent circuits are not necessarily circuits isolated from each other and that electrical connections are permitted, if they do not interfere with the electrical independency of the circuitsbut the Court made this further statement :
It is an evident fact that the defendant's circuits are operatively independent, and that, as the word “independent” is used by electricians, they are elec
trically independent. The word was used, as it was wont to be used by electricians, to mean independent in an electrical sense.
The connections of the circuits there referred to were the same as the connections in the Hewitt device-namely, the circuits leading from a polyphase generator. It is clear that in the same sense in which the court held those circuits to be electrically independent the sources of current in Hewitt's device are electrically separate, and this is all that is called for by the issue. For this reason it must be held that Hewitt had a right to make the claim in issue and that priority was properly awarded to him.
The decision of the Examiners-in-Chief is affirmed.
EX PARTE MEYER.
Decided October 13, 1909.
148 0. G., 1088.
AMENDMENT-ADMISSION OF CLAIMS AFTER FINAL REJECTION-RULE 68 CON
Claims admitted after final rejection under that part of Rule 68 requiring a “showing duly verified, of good and sufficient reasons why they were not earlier presented," are for consideration by the Primary Examiner and not for the purpose of appeal only.
Mr. E. W. Bradford for the applicant. BILLINGS, Acting Commissioner:
This is a petition for the reopening of this case after final rejection, with the admission of a single claim filed in lieu of two claims which were under final rejection.
The record shows that all the claims were originally rejected; but upon reconsideration of the application the Examiner allowed three of the claims and finally rejected two claims. The applicant then canceled the two finally-rejected claims and submitted a single claim in lieu thereof. The Examiner refused to admit this claim without a showing of good and sufficient reasons why it was not earlier presented. This showing was made and accepted by the Primary Examiner; but the claim was admitted for the purpose of appeal, and not for consideration by the Examiner.
Under the provisions of Rule 68 claims submitted after an application is under final rejection may be entered, first, without showing, when they are presented in place of those rejected "in better form