CONOVER et al. v. WOHL

CONOVER et al. v. WOHL. Court of Appeals of District of Columbia. Submitted March 15, 1928. Decided May 7, 1928. No. 2047. 1. Patents @=>91(1) — Rule as to burden of proof is not affected by issue of patent to senior party at time junior party’s application was pending. Where application of junior party was pending at time patent issued to senior party, the rule as to burden of proof is not affected by the issue of patent. 2. Patents @=>97 — Citizen of free city of Danzig held entitled to privileges of law relating to patents (Nolan Act [35 USCA §§ 80-87]). Citizen of free city of Danzig, filing application in Germany for patent, is entitled to privileges afforded by Nolan Act (35 USCA §§ 80-87; Comp. St. §§ 9431a-9431h). 3. Patents @=>91 (4) — Junior party held properly awarded priority of invention relating to method of oxidizing anthracene. Junior party to interference proceeding held properly awarded priority of invention relating to method of oxidizing anthracene. Appeal from the Commissioner of Patents. Interference proceeding between Courtney Conover and another and Alfred Wohl. Decision for the latter, and the former appeal. Affirmed. A. J. Decker, of Washington, D. C., for appellants. W. E. Warland, of New York City, for appellee. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. [MAJORITY — VAN ORSDEL, Associate Justice.] VAN ORSDEL, Associate Justice. This is an appeal from the decision of the Commissioner of Patents in an interference' proceeding awarding priority of invention to the junior party, Wohl. The invention is described in the opinion of the Commissioner as follows: “The invention relates to catalytic oxidation of organic compounds and specifically to the production of anthraquinone by the oxidation of anthracene in the presence of an oxide of vanadium as a catalyst. “The issue is stated in two counts reading as follows,: “1. The method of oxidizing anthracene, which comprises subjecting anthracene in the vapor phase to oxidation by oxygen in the presence of an oxide of vanadium as a catalyzer, at a temperature of about 300°C. to 500°C. “2. The method of oxidizing anthracene, which comprises passing a mixture of anthracene in the vapor phase, and an oxygen containing gas into contact with an oxide of vanadium as a catalyzer heated to a temperature of about 300°C. to 500°C. whereby anthraquinone is produced.” Appellants, Conover & Gibbs, are patentees. The Wohl application was pending, however, at the time the patent to appellants was issued; hence the rule as to burden of proof is not affected by the issue of the patent. The junior party, Wohl, relies for constructive reduction to practice on the filing of an application in Germany on June 22, 1916. The earliest date alleged by the senior parties, Conover & Gibbs, was October 15, 1916. It follows, therefore, that, if appellee is entitled to the date of the German patent,'he is entitled to an awald of priority. His application was filed in this country August 11, 1921. Being a citizen of the free city of Danzig, he is entitled to the privileges afforded by the Nolan Act of March 3, 1921, 41 Stat. 1313 (35 USCA §§ 80-87; Comp. St. §§ 9431a-9431h). Conover & Gibbs urge that the German application does not disclose a process within the terms required by the counts. This contention has been overruled by all three tribunals of the Patent Office, and as the invention is a highly technical one we are disposed to conform to their opinion. A careful examination of their analysis justifies this conclusion; and, since the party Wohl is entitled to his German filing date for constructive reduction to practice, he is entitled to the award of priority. The decision of the Commissioner is affirmed.