Petition for A Writ of Certiorari — Geophysical Development Corp. v. Coe

=> TTS

Leg AUG 17 1943

Sicha ORE CROPLEY

CLERK

Supreme Court of the Gnited States

Ocroser Term, 1943.

: vo. 269

GEOPHYSICAL DEVELOPMENT CORPORATION,

SHELLEY KRASNOW AND LEON F. CURTISS,

Petitioners,

v.

CONWAY P. COE, COMMISSIONER OF PATENTS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA, AND BRIEF IN SUP-

PORT THEREOF.

LAWRENCE KOENIGSBERGER,

Counsel for Petitioners,

1426 H Street, Northwest,

Washington, D. C.

Press or Byron S. ADAMS, WasktnoTon, D. 0,

LPR EP

Ss ee

INDEX.

Supsect InpeEx.

Page

Watttion Lor: WEEE GE GOTUIOTARS 6 os.c cok n sk cd xvi cove da 1

A. Summary statement of matter involved ........ 1

B. Reasons relied on for allowance of writ........ 5

Pee TOE WEE er Fae ciwartbawkern ie ienees ee 5

Briel ik GUDDOTL OE DUTTON 2. oak cc ce cicescescepines 7

I. Opinion of Court of Appeals .................. 7

Be, IE 86a FSi id on bu vias cud ae whe ees 8

A eee ree re Tre 8

TV. Hpeeromhiem OF OTPORD oc. ccs cet esncsesess 8

ern Treen re ee 10

VI. Summary of the argument ................... 10

ee I oi his ik oe WEN Rw N 0K oe ab aa eee 10

Es MN c's Cec Ect uwatesk oo4i banaeeeenens 20

SO — GPRD 6s hicks eet hse cn tadecenebada vax 21

Cases CITED.

Ackerman v. Light, 96 F’. (2d) 304 .............ccc0: 12

AEOOY F, TOM, FOE TN. Bo nk a oko bees kwe eave ces 18

Baltimore and Ohio Railroad Co. v. United States, 264

iy hE occas cbs ox Ga viWhees baeeae eae 15, 16

Baltimore and Ohio Railroad Co. v. United States, 298

SS POR as fer rr re ies ae er 14

Beentold v. Lanser, 62 F. 416 2. ..5 ccc cicnccccacss 12

Deley v. arene, GB. Cid) BO ow. ccc cece cscnsncens 16

Earles v. Gomber, 50 App. D. C. 389, 273 F. 353........ 12

Ellis v. Maddox, 96 F. (2d) 308............... 7, 12, 16,18

Ewing v. United States ex rel. Fowler Car Company,

Re aaa igri recreate on fer er genera ney as

Exhibit Supply Co. v. Ace Patents Corporation, 315

Se EE 5 PNG EVE b asked CARR RST aneeeiean 8

ii Index Continued.

Page

ores W, meee, Ree GB Be in os vines wec nace 18

Interstate Commerce Com. v. L. & N. R. Co., 227 U. S.

Ba ia de a ee eae ae e's waebe ai 15

Kinsman v. Strohm, 1906 C. D. 481 .................. 17

Latta and Thompson v. Murphy, 1915 C. D. 7........ 13

Lowry and Cowley v. Spoon, 1906 C. D. 224 .......... 18

McCullough v. Cosgrave, 309 U. S. 634 .............. 15

Norling v. Hayes, 37 App. D. C. 160 ................ 12

Ohio Bell Telephone Co. v. Public Utilities Commission,

oo 6 UL canis wis Gute cake wnee 16

Oliver v. Felbel, 20 App. D. C. 255 ..............04.. 12

Podlesak v. MeInnerney, 26 App. D. C. 399.......... ll

Radtke Patents Corporation v. Coe, 122 F. (2d) 937,

OR A eS a Cee pene erence 16

Roller v. Goodwin, 282 O. G. 387, 1921 C.D.11........ 19

Union Switch & Signal Co. v. Louisville Signal Co., 73

iy SE os anni aon own x oses eeu neu conan eee 12

White, Application of, 57 App. D. C. 355, 23 F. (2d) 776 12

REGULATIONS.

UE See Gila tad and liigie SW hua erk se Wie wee Walaa ll

Rule 122, Rules of Practice in the United States Patent

SS airs ak Phck nb kin hv hake een canteen eee ll

STATUTES.

S&S = § 3 fe ee eer ree 10

3% & FS oh Perro err er eee 10, 21

Ss, Ss As We EA, Wo Kdcku Sane bia sdaanca saucuna 12,21

Judicial Code, Sec. 240(a), 28 U. S. C. 348(a) ...... 8

Supreme Court of the Gnited States

Ocroser TERM, 1943.

No.

GEOPHYSICAL DEVELOPMENT CORPORATION,

SHELLEY KRASNOW AND LEON F. CURTISS,

Petitioners,

v.

CONWAY P. COH, COMMISSIONER OF PATENTS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA, AND BRIEF IN SUP-

PORT THEREOF.

May it please the Court:

The petition of Geophysical Development Corporation,

Shelley Krasnow and Leon F. Curtiss respectfully shows to

this Honorable Court:

A.

SUMMARY STATEMENT OF THE MATTER

INVOLVED.

The petitioners filed their complaint (R. 1-15), subsequent-

ly amended (R. 34-37), in the District Court of the United

States for the District of Columbia against the respondent,

as Commissioner of Patents, by which they sought an order

eas a a Sie NS LEO

5 Asay a5 Bay

basemph raves rh reer

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2

of that Court requiring the respondent to permit the taking

of certain testimony and the filing of certain interrogatories

in support of their motion, then and now pending, to dis-

solve an interference declared in a proceeding pending in

the Patent Office.

On motion of the respondent (R. 37) the District Court

dismissed the amended complaint (R. 38); the petitioners

appealed to the United States Court of Appeals for the Dis-

trict of Columbia, which affirmed the judgment of the Dis-

trict Court (R. 40-42).

The facts, as averred by the complaint and the amend-

ment thereto, and admitted by the motion to dismiss, are as

follows:

There is pending in the Patent Office the application of

petitioners Krasnow and Curtiss for letters patent on cer-

tain improvements in method and apparatus for measuring

radio activity (R. 1). Petitioner Geophysical Development

Corporation is their assignee (R. 1).

The respondent declared an interference in respect of

certain of the claims of this application with a then pending

application of one Neufeld and with a late: filed application

of one Howell (R. 2, 5).

Petitioners filed a motion to dissolve the interference, on

the ground that the applications of Neufeld and Howell did

not contain complete disclosures as required by R.S. 4888,

35 U.S. C. 33 (R. 6). The respondent granted this motion

in part (R. 6).

In order to delay or prevent issuance of a patent to peti-

tioners, and to put them to inordinate expense, Neufeld and

Well Surveys, Inc., assignee of Neufeld, thereupon disclosed

the issues in the interference to one Bender, to whom a

patent on a different invention had previously issued, and

to Lane-Wells Company, assignee of Bender, and induced

Bender and Lane-Wells Company to file an application for

reissue of the Bender patent to include the claims involved

in the interference (R. 7); Bender and Lane-Wells Com-

pany thereupon filed an application for reissue of the Ben-

3

der patent, alleging in support thereof that the patent pre-

viously issued to Bender was inoperative because of the

omission from the specification of certain claims corres-

ponding with certain counts of the interference, and falsely

alleging that the errors which rendered the patent inopera-

tive arose from inadvertence, accident or mistake (R. 8-9).

The reissue application was thereupon included in the inter-

ference (R. 11).

Petitioners moved in the Patent Office to dissolve the

interference with respect to the Bender application, upon

the ground that there was no inadvertence, accident or mis-

take to support the application for reissue of the Bender

patent, and that there was no sufficient excuse for the delay

of almost two years in applying for such reissue (R. 14, 19-

22). At the same time, they moved that times be set for the

taking of testimony in support of their motion and for leave

to file interrogatories to be answered by officers of Well Sur-

veys, Inc. and Lane-Wells Company, respectively (R. 14,

16, 22-28). It was stated in the motion to take testimony

(R. 23-24) and the statement was verified by the affidavit

of petitioner Krasnow (R. 28-29), that the testimony pro-

posed to be taken was to the effect that prior to the issuance

of the Bender patent, Krasnow had disclosed to Lane-Wells

Company, assignee of Bender, the subject-matter of the

petitioners’ application and had given it a copy of his ap-

plication and drawings thereof; that for some time there-

after Lane-Wells Company negotiated with Krasnow for

the purchase of rights under his invention; and that there is

an identity of interest between Bender and Neufeld and

their respective assignees (R. 23-24, 28-20), although osten-

sibly adverse parties. The interrogatories proposed to be

filed showed on their face that they were to elicit testimony

as to the identity of interest above referred to (R. 17-18,

27-28).

The Examiner of Interferences dismissed the motion jo

dissolve, the motion to take testimony, and the motion to

file interrogatories. The respondent reversed the action of

4

the Examiner of Interferences in dismissing the motion to

dissolve, and held that the motion to dissolve afforded

proper grounds for dissolution, ‘‘if established by the ree.

ord’’; however, he affirmed the action of the Examiner of

Interferences in denying to the petitioners the right to pre-

sent evidence in support of their motion, and in denying

them the right to file interrogatories (R. 32-33).

Petitioners also aver in their pleadings in the District

Court, and the respondent’s motion to dismiss admits that:

The original Bender patent was not defective and insuff-

cient but covers the invention intended to be patented

therein and there was no inadvertence, accident or mistake

in the grant thereof (R. 9) ;

Petitioners in December, 1937, disclosed the invention set

forth in their application, to Bender and his assignee, Lane-

Wells Company (R. 9);

During the prosecution of the original Bender patent,

Bender and his assignee deliberately canceled claims

broader than the interference issue (R. 10), with knowledge

of the claim and application of petitioners (R. 12);

The interests of Neufeld and his assignee, Well Surveys,

Ine., and of Bender and his assignee, Lane-Wells Company,

in the issue of the interference, are identical, and they have

at all times been represented by the same record attorneys

(R. 11);

The questions raised on petitioners’ motion for dissolu-

tion in the interference are questions of fact and require

the production of evidence not of record in the United

States Patent Office (R. 34) ;

The record in the Patent Office contains none of the evi-

dence on which petitioners must rely to establish the facts

in support of their motion for dissolution; they never have

had an opportunity to present such evidence, since the Pat-

ent Office record was made prior to the questions being

raised on the motion for dissolution; and such evidence

will not become a part of the record unless petitioners are

5

permitted to introduce it in the form of affidavits, deposi-

tions or other evidence not otherwise of record (R. 35) ;

No evidence on the question of inadvertence, ete., raised

on petitioners’ motion to dissolve the interference, will be

considered by the respondent after there has been a decision

on those questions on the pending motion for dissolution ;

and petitioners’ sole opportunity to have any such evidence

considered on those questions is by placing such evidence

of record before there is any decision on the motion for

dissolution (R. 35-36).

B.

REASONS RELIED ON FOR THE ALLOWANCE OF

THE WRIT.

1, The case presents an important question of procedure

in the United States Patent Office.

2. The opinion and judgment of the United States Court

of Appeals for the District of Columbia, sustaining the ac-

tion of the respondent, sanctions a denial of due process of

law to the petitioner, and

3. Is based on an incorrect and improper interpretation

of the statutes and regulations relating to proceedings in

the United States Patent Office,

Wuererore your petitioners respectfully pray that the

writ of certiorari be issued out of and under the seal of

this Honorable Court, directed to the United States Court

of Appeals for the District of Columbia, to certify and to

send to this Court for its review and determination on a

day certain to be therein named, a full and complete tran-

script of the record and all proceedings in the case num-

bered and entitled on its docket No. 8209, Geophysical De-

velopment Corporation, Shelley Krasnow and Leon F. Cur-

tiss, Appellants v. Conway P. Coe, Commissioner of Pat-

ents, Appellee, to the end that the said judgment of the

tia Na iy SSA ne lac:

i aR SERINE SGN S csi nas 422 did

3 ARS eK

——

6

United States Court of Appeals for the District of Colum.

bia be reviewed and determined by this Honorable Court;

and that your petitioners may have such other and further

relief in the premises as to this Honorable Court may seem

meet and just.

LawrRENCE KOENIGSBERGER,

Counsel for Petitioners.

.

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