The opinion
BLAND, Judge
(specially concurring).
I concur in the decision of the majority on account of the use of the word “clearly” in the phrase “and presumably knew that the involved invention was clearly disclosed therein.”
While it has been frequently held that every question that was or might have been presented for determination in an interference case is presumed to be concluded, none of the decided cases show a state of facts on all fours with that at bar here, and it must be recognized that this case extends the estoppel doctrine further than it ever has been applied except in the use of broad language employed under circumstances differing from those at bar.
The so-called doctrine of estoppel is a harsh one and not favored by the courts. Nevertheless, the Patent Office and the courts have found it a wholesome one to apply where the party to which the estoppel is applied neglected or refused to contest priority on a part of the inventive subject-matter in his adversary’s application.
In the instant case we must assume that Bertorello’s drawings so “clearly” disclosed, as part of his invention not claimed, the subject-matter which is now claimed by appellant, that appellant, if diligent, must have recognized while in the interference the importance of the disclosure.
I especially wish to reserve for future consideration the question here decided when it concerns certain disclosures in drawings made by draftsmen or otherwise which are so incidental in character to the invention described in the specification 'as might easily be overlooked by a diligent contestant in an interference case. One should not be held to be in an inequitable position who has failed to present a claim of priority in that which would ordinarily be overlooked by a diligent, capable patent interference litigant.