Janette v. Persons , 38 F.2d 364 ( 1930 )

GRAHAM, Presiding Judge,

delivered the opinion of the court:

This appeal ivas heard by the court with No. 2322 and the cases-were briefed together. The party Janette also relies on his application for patent, serial No. 25530, and his preliminary statement and record made by him in said No. 2322, Janette v. Folds ami Persons, 17 C. C. P. A. 879, — Fed. (2nd) —.

Lawrence M. Persons, the appellee, filed his application, serial Nq.. 85370, for an improvement in automatic fuel oil pumps, on February 1, 1926, which application was a division of his copending application, serial No. 43064, filed July 13, 1925. On February 4, 1926, an interference was declared between said divisional application and the-said application of the appellant, John T. Janette, serial No. 25530.: The counts in the interference are two, and are as follows:

1. Tlie combination with a motor driven pump, having a switch for controlling-the circuit to the motor, of a float for actuating said switch, arranged so that, the switch will be open -when the float is in raised position, and will be closed, when the float is in intermediate position, and will be opened when the float is in. lowered position.

2. In a pumping apparatus, the combination of a source'of supply, a receptacle, a motor driven pump for pumping liquid from the source of supply into said' receptacle, a switch for controlling said motor, and a float in the receptacle,, which is adapted to open the switch when the liquid reaches an upper level,; to close the switch when the liquid reaches an intermediate level, and to again open the switch when the liquid reaches a lower level.

In appellee’s preliminary statement he declares that he conceived and disclosed the invention in question in May, 1924; that he made-the first drawing in August and a written description in December,. 1924; and that on June 16,1924, he reduced the invention to practice..

We held in Janette v. Folds and Persons, supra, that Janette shouldi be confined to his filing date, April 24, 1925, for conception and reduction to practice. This record seems to show quite definitely an earlier conception and reduction to practice by Persons of the invention in question.

The device shown by Persons’s application is an alleged improvement upon the 3-float mechanism described in said Janette v. Folds and Persons, supra, and consists of a similar control operated by a single float, which float closes an electric circuit at normal low level and opens it at normal high level and abnormal low level. Persons states that he first disclosed the subject matter of his invention to-Folds, E. W. Schroeder, and a person by the name of Brinker, some time prior to April 9, 1924, at which time he suggested a lever on the automatic float switch which would open the circuit at an extreme-low level; that soon thereafter he made and tested such a device in a bucket of oil. As the Underwriters’ Laboratories seemed to prefer the multiple-float structure, thereafter he prepared several of these. In June, 1924, one of his single-float structures, Exhibit 39, equipped rvith a lever as theretofore conceived by him, prepared by an employee, Herman Hempel, was operated in the development room for two weeks. One of these single-float devices was also submitted to the Underwriters’ Laboratories in August, 1924, equipped with a mercury tube switch, which was in evidence as Exhibit 22. Shortly thereafter complete tracings were made of the device, all of which are in evidence, preparatory to commercial production. In September, 1924, Persons explained this device to his patent attorney, Coltman. It appears that but the two devices, Exhibits 39 and 22, were assembled before the original application of Persons was made.

Persons’s testimony, in its essential details, is fully corroborated by Schroeder, of the Underwriters’ Laboratories; Herman Hempel, his mechanic; and by several other apparently reliable witnesses. From this record we are convinced Persons conceived, fully disclosed, and reduced to practice the invention here in issue not later than October 1, 1924. This being true, his conception and reduction to practice antedates that of Janette, and he is entitled to priority.

The decision of the Board of Appeals is therefore afp/rmed.