BLOOM v. LOCKE et al.

BLOOM v. LOCKE et al. Patent Appeals Nos. 3233, 3234. Court, of Customs and Patent Appeals. March 5, 1934. H. H. Benjamin, of Washington, D. .C. (Morris Hirsch and Harry Price, both of New York City, of counsel), for appellant. Elwood Hansmann, of Chicago, Ill., for appellees. Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges. Appellant’s petition f r rehearing denied April 15, 1934. [MAJORITY — GRAHAM, Presiding Judge.] GRAHAM, Presiding Judge. The record now before us comprises the proceedings in two interference proceedings, numbered, respectively, 56,841 and 60,199, instituted and decided by the tribunals of the United States Patent Office and now brought to this court on appeal by Bloom, the appellant in both eases. On May 19,1922, Bloom presented his application to the Patent Office for a patent upon apparatus for chassis lubrication, which went to patent on June 14, 1927. On July 31, 1925, the appellees, Sylvanus D. Locke and Charles R." Dosch, filed their joint application for patent on a similar invention. On May 16, 1928, an interference, No. 56,841, was declared by the office between said application and the Bloom patent, which . interference was redeelared on October 4, 1929, to include a reissue application of Frederick H. Gleason, which application was filed December 5, 1928, on patent No. 1,629,453, granted May 17,1927. As reformed, the interference included the following counts: “1. A central chassis lubricating installation including a pipe line having an inlet closed against venting and having branches with outlets feeding the bearings and connected in multiple, means closing said branches against venting, said anti-venting means including fittings normally open to the pipe line from which they are supplied and having orifices therein of dimensions so small as to prevent concurrent flow of lubricant and air therethrough in opposite directions, said orifices adapted to emit lubricant therethrough consequent upon forcing small charges of lubricant into the hedd of the pipe line, until equilibrium in the system is restored. “2. A central chassis lubricating installation including a pipe line having outlets mounted near the bearings and connected in multiple, a pump connected to the inlet of the piping system, means closing said inlet against venting, means closing said outlets against venting, said latter anti-venting means including fittings at the bearing ends of the branches normally open to the pipe line from which they are supplied and having orifices therein of dimensions so small as to prevent the concurrent flow of lubricant from the branches, and air therethrough in opposite directions, said orifices adapted to emit lubricant therethrough consequent upon forcing of small charges of lubricant from the pump into the head of the pipe line, until equilibrium in the system is restored.” The original declaration of interference included "count 1 only, which was copied from Bloom’s patent claim No. 7. The party Bloom moved to dissolve the interference as to this count, claiming that Locke and Dosch could not make the count. This motion'was denied by the Law Examiner. Upon the redeclaration of the interference to include the Gleason reissue application, counts 2 and 3 were added to the interference; these being claims 8 and 1, respectively, of the Bloom patent. Said count 3 will be hereinafter quoted. The matter was submitted upon the preliminary statements, and upon an earlier application of Locke and Dosch, serial No. 411,-533, filed September 20,1920. Each of the parties filed a preliminary statement. After the filing of these, each of the parties Locke and Dosch, and Bloom filed a motion to dissolve as to Gleason. This motion was allowed by the Law Examiner as to count 3, and denied as to counts 1 and 2. No further action was taken by Gleason as to said dissolution and it became final. Thereafter, on August 5, 1930, a new interference was declared between the parties Locke and Dosch, and Bloom upon the subject-matter of said count 3, which interference is No. 60,199, the second one involved herein. Said count 3, renumbered as count 1, is as follows: “1. In a motor vehicle, in combination, chassis bearings, an installation for supplying lubricant to said hearings, said installation including a force pump having a fixed cylinder delivering at a level higher than said bearings, a piping system normally maintained partly filled with oil and supplied from said pump intermittently with small charges of oil and having outlet branches leading to various hearings, a device in each of said branches to limit the flow there-through, said branches normally oil-sealed to prevent the entry of air in reverse direction therethrough, said piping system being also closed from the external air ahead of said branches, so that the branches will emit oil to the hearings after pump operation, until the state of equilibrium of the pipe contents is restored.” The parties have, by stipulation, consolidated the records and cases for the purposes of this appeal, and they will be so considered. The issues in interference No. 58;841 will be first considered. When this matter came on to bo heard on the preliminary statements and on the earlier application of Locke and Doseh, Locke and Doseh moved to shift the burden of proof. This motion was denied by the Examiner of Interferences, without prejudice, on the ground that the counts of the interference did not read upon the earlier application of Locke and Doseh. The matter having been presented to the Examiner of Interferences, the issue being, as stated by that tribunal, “The sole issue presented for decision at this time is whether or not an earlier application of Locke and Dosch, Serial No. 411,533, filed September 20, 1920, supports the counts,” it was held that it did not so support them. Priority, therefore, was awarded, on the record,, to the party Gleason. On appeal, the Board of Appeals decided that said application 411,533 would support the counts, reversed the decision of the Examiner of Interferences, and awarded priority to Locke and Doseh. The party Gleason has accepted the adverse decision as to him, and has not appealed. The tribunals in the Patent Office seem to have varying views as to whether the counts of this interference read upon the earlier or parent application of the party Locke and Doseh. A brief description of the disclosure of Bloom, from whose patent the counts were taken, seems necessary. Bloom shows a central lubricating system for automobiles, including a manually operated force pump mounted in the dash. This forces lubricant into a pipe line, through which it is conducted to the various parts of the chassis where lubrication is needed. A spring and hall valve prevents return of the lubricant into the reservoir. Branches lead from the pipe line to the various points of lubrication. These branches have fittings attached to their outlets, which fittings are open to the pipe line, and each of which has a single very small opening in the center thereof, which opening extends through the fittings to the bearing, and which opening is so sized-that, as lubricant flows outward through it, air cannot enter it. The lubricant pressure in the pipe line caused by impulses of the pump is gradually relieved by the outward flow of the lubricant through these small openings in the said fittings, until equilibrium in the pipe line is restored. The Locke and Doseh disclosure shows a lubricating system operating on a somewhat different plan. Oil from the crank case lubrication is used. This oil is taken from the oil pump which is located in the bottom of the crank case, and conducted upward through a pipe to a distributing device. Here, by means of proper gearing, a disk having apertures therein is slowly revolved, and at certain points the apertures will come in register with openings in small pipes which conduct oil to pipe lines, which lines extend to the various portions of the chassis where lubrication is required. As a hole in said disk registers with the opening into one of said pipes, a quantity of oil enters the pipe, after which the disk revolves and closes the opening. This oil is conducted downward through the pipe to a point where the pipe is connected with another pipe of like size, by means of a T. The latter pipe extends longitudinally of the chassis and, at points where lubrication is required, another branch pipe, connected with the main horizontal pipe by a T, extends to the point of lubrication. At the point where the bearing is to he lubricated, a piece of cotton wieking is inserted in the outlet of this pipe, which wieking is kept in contact with the bearing, and through which oil seeps and is conducted to the bearing. The disclosure also shows, as an alternative device, between the last named T and this outlet portion, a measuring valve which is fitted with threads for attachment to the outlet, and to the opposite portion of this short section of pipe which supplies this particular bearing with oil. As shown by Figures 12 and 13 of the Locke and Doseh drawings, after oil from the pipe line is forced into this measuring valve, the valve, hy means of a spiral spring, is elos-ed toward the pipe line end. Thereafter, the oil, whieh is trapped within the valve, may percolate through the wick to the bearing, or will be forced into the bearing when another. impulse from the pipe line again fills the ' measuring valve. The principal controversy in the case eenters around the language in count 1, which is as follows, and which is illustrative of the language in count 2: “Means closing said branches against venting, said anti-venting means including fittings normally open to the pipe line from which they are supplied and having orifices therein of dimensions so small as to prevent concurrent flow of lubricant and air therethrough in opposite directions.” The Examiner of Interferences thinks that this language does not read upon the Locke and Doseh disclosure, and the board is of the opposite opinion. This language, it must be conceded, when read upon the Bloom disclosure, has a definite and easily understood, meaning. There need be no misunderstanding as to what the language means, when read that connection. Bloom shows fittings whieh are attachable to the branches of his pipe line, and which are normally open thereto. In his Figures 2 and 3, as a part of the said fittings, there appears a small metal part with a smll opening through it in the middle.” On the contrary, Locke and Dosch must supply this feature, if at all, by that portion of the outlet pipe whieh comes in contact with the bearing, and the orifices which are named 0 e“StitUteda International Dictionary (1932) : “Anything used m fitting up; esp. pi., necessary fixtures or apparatus; auxiliary parts, as of a boiler, or the smMl separately made parts of a machine; the fitUngs of a room; gas fittings, íeyc e fi mgs. Loekwood’s Dictionary of Mechanical Engineering Terms (Horner) thus defines the word: “Commonly applied to the essential parts or adjuncts of an engine, or boiler, or machine. Specially applied' to boiler fittinas ” s . . . These definitions clearly include the Bloom parts in question. However, it is a considerable stretch of these definitions to say that they would also include a piece of wick-ing pushed or crowded into the end of .a section of pipe. . The word “orifice” is thus defined by Webster’: “A mouth or aperture, as of a tube, pipe, ete.; an opening * * It is difficult to discern ■wherein the interstiees which may be present in a piece of fabric may be called an orifice or orifices. On the contrary, such a device is more to be likened to an obstruction than it is to one having orifices therein. The various threads or filaments composing the fabric, of course, lie over and abollt ^ otber> and an7 lubricant tbat enters and passes through the plug of Loeke ^ Doseh mast do so by a system of percolation through and about and among lbe dbers of the material, _ In our opinion, the wick disclosed by Locke and Dosch in their primary device is not a fitting normally open to the pipe line and having orifices therein as described in the counts. If the alternative device having a measuring valve is to be relied upon by Locke and Dosch, this equally fails to support the counts. When this valve is used, the “fittings” are not “normally open to the pipe line,” because of the valve part 73 whieh normally closes the inlet from the pipe line, while the counts should be liberally construed, we agree with the Examiner of Interferences that we should not depart from ihe ordinary meaning of the words used to carry out such construction, and we are furiher of the opinion that if there is any ambiguity about the matter, the count should be read ^ the light of the disclosure of the patent from whieh it was taken. Both counts 1 and 2 contain, substantially, this language -which, in our opinion, does not read upon the Loeke ^ Doseh disclosure. There is some difference of opinion, also, 33 to whether Locke 311(1 Dosch disclose a • ^ branches, and outlets as required £ ^ e ^ ^ tionloeke ^ Doseh k during these interface oeeedingS; taken varying positions. Some quest¡on> ^ ^ M to Aether the Locke and Dosch outlets may be said to be eonneeted “in multiple.” In view of our conclusion as to the points hereinbefore reviewed, it will not be necessary for us to discuss these latter named controversial points. r._ . , . . . „ . , „ As to the single count of interference No. 60,199, the only question arising thereon -whether the application in the earlier Looke and Dosch; serial No. 411,533, has a suffleient disclosure to support the count. If it does, Loeke ^ Doscll skould be given priority, as the filing date of said application is earlier than any date to which the party Bloom is entitled. The Examiner of Interferences calls attention to the fact, in his decisión, that when Loeke and Doseh made their original motion to shift the proof, the party Bloom, in the briefing thereof, conceded that the earlier Locke and Doseh application would support count 3. The record does not show that there was any contest as to that point in the earlier proceedings in the ease. Considering this fact, in connection with what the Examiner of Interferences thought to be the disclosure of this earlier Locke and Doseh application, he awarded priority of invention to Locke and Doseh. The principal contention as to this point revolves about the language in the single count of the interference, namely, “a force pump having a fixed cylinder delivering at a level higher than said bearings.” The party Bloom contends that ho discloses a reciprocating pump having a fixed cylinder, and that he also plainly discloses that this pump delivers at a level higher than the bearings to be lubricated. There can be no doubt about this disclosure. It is not only shown by Bloom’s drawings, but is disclosed by his specification, wherein the location of the pump compared with the bearings is described and relied upon. The Board of Appeals took the same view of the matter as did the Examiner of Interferences, adding, however, that “in our opinion the real invention involved in the count is not affected by the employment of a pump having a cylinder.” In addition, the board said: “In fact if the easing of the Locke Pump is circular we think the count is met in terms by such a construction.” However, the Board of Appeals does not state that the disclosure of Locke and Doseh shows such a circular casing. It seems lo be the opinion of the two Patent Office tribunals that the specification of Locke and Doseh shows a rotary pump, and from this it is deduced that the pump must be contained within a cylinder, as, it is said, all rotary pumps are so constructed. Again it is held by both tribunals that the point of delivery of the Locke and Doseh distributor is at a level higher than the bearings. Counsel for Bloom insist that the Locke and Doseh disclosure does not show this to he necessarily so. In the Locke and Doseh drawings, Figure 1, the engine is shown in an elevated position above the bearings, so that the whole of the device may be fully disclosed. Two points of distribution from the crank ease pump are shown — one in the distributor hereinbefore discussed, and the other at a lower point where the distribution of oil for crank case bearings is made. If the engine be lowered to its proper place where the center of the crank shaft will be just above the front axle, as is stated in the specification, it cannot be certainly determined by us that the distributor outlet of the system will not be above all the bearings to be lubricated. There is necessarily much uncertainty in the mind of the court about the sufficiency of the disclosure of Locke and Doseh in respect to the matters above referred to. We are loath to disturb the concurring decisions of the tribunals of the Patent Office in this respect, in view of such uncertainty. Both the tribunals below were of the opinion that the disclosure was sufficient, and, while it may and does appear that there is much question about this, we. do not feel that we are so convinced of the error of the decisions of the concurring tribunals below that we should set them aside. The appellant has raised an additional question, namely, that the party Locke and Doseh added the claim which constitutes the count of this interference more than two years after the subject-matter of this count was disclosed in a publication, a copy of which publication appears in the record, and appeal’s to be a page from Automotive Industries, of May 18, 1922. The Board of Appeals refused to consider this matter on the grounds that it was not raised before the Examiner of Interferences, and was not a matter affecting priority or any question ancillary thereto. We agree with the Board of Appeals in this conclusion. Irrespective of the question whether it should have been first raised before ihe Examiner of Interferences, in our opinion it is a matter having’ to do only with patentability, and we will not go into that issue here. Gowen v. Hendry, 37 F.(2d) 426, 17 C. C. P. A. 789. This is not a similar case to Sundstrand v. Gubelmann, 55 App. D. C. 200, 4 F.(2d) 166. In that case the counts were not copied until over two years had elapsed after patent had issued. We therefore conclude that there was error in awarding priority to the party Locke and Doseh upon counts 1 and 2 of interference No. 56,841, and the decision of the Board of Appeals is reversed therein and priority will be awarded to the party Bloom. The decision of the Board of Appeals as to count 1 of interference No. 60,199 is affirmed. Certain additional matters were added to the record as the result of certiorari issued in response to suggestions of diminution of the record, made by both parties hereto. Some of these matters are deemed essential to the record, and some are of a more doubtful character. It is thought proper that each party pay one-half the costs occasioned by the insertion in the transcript of this additional matter, and this will be the order.