GOWEN et al. v. ARNOLD

GOWEN et al. v. ARNOLD. Court of Customs and Patent Appeals. January 27, 1930. Patent Appeal No. 2146. Samuel E. Darby, Jr., of New York City (C. M. Thomas and F. D. Thomas, both of Washington, D. C., of counsel), for ,appellants. J. G. Roberts, of New York City (Irving MacDonald, of New York City, of counsel), for appellee. Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges. [MAJORITY — HATFIELD, Associate Judge.] HATFIELD, Associate Judge. This is an appeal in an interference proceeding from the decision of the Board of Appeals, .affirming the decision of the Examiner of Interferences, awarding priority of invention to appellee. • The invention in issue relates to certain structural improvements in vacuum tubes or audions. The counts in issue read as follows : ■ “1. An electron discharge device comprising an evacuated vessel, a press within said vessel, an anode and a cathode above said press, the axis of said electrodes being parallel to the axis of said press, and a metallic frame connected to said press and supporting said electrodes, said frame being in contact with said anode. “2. An electron discharge .device comprising an evacuated vessel, a press within said vessel, an anode and a cathode above said press and parallel thereto, and a metallic frame connected to said press and supporting said electrodes, substantially all of one side of said anode being subjected to electron bombardment from said cathode. “3. An electron discharge device comprising an evacuated vessel, a cathode, an anode, a press, said anode and cathode having their axes substantially, parallel'to' said-press, a support for said cathode comprising a:metallio frame arising from said press, substantially all of one surface of said anode being subjected to electron bombardment.” ' The questions of law involved herein are the same as those presetted to-the court in the following cases, decided .concurrently herewith: Robert F. Gowen v. William F. Hendry (Suit No. 2216, Interference No. 50818) 37 F.(2d) 426; and Robert F. Gowen and James L. Bradford v. Harold D. Arnold and William C. White (Suit No. 2147) 37 F.(2d) 428. In those cases it was held that the jurisdiction of this court in interference cases did' not extend to questions involving the patentability of alleged inventions, but was limited to the question of priority of invention and matters ancillary thereto. In addition to- the questions of law rer ferred to, counsel for appellants contends that Arnold’s, application does not disclose the subjeet-matter of the issue, and that, accordingly, he has no right to make the claims. This contention- was not made before the tribunals below, and therefore will not be considered here. It appears from the record that Arnold is the prior inventor of the subject-matter .of the issue. The decision of the Board of Appeals is therefore affirmed. ■ Affirmed.