
    Marlin ELLER, Plaintiff, v. Marion G. DENTON, Defendant.
    Civ. A. No. 2417.
    United States District Court S. D. Florida, Tampa Division.
    June 18, 1956.
    Hal H. McCaghren, West Palm Beach, Fla., for plaintiff.
    A. R. Surles, Jr., Lakeland, Fla., for defendant.
   BARKER, Chief Judge.

This is a suit praying that decision of the Board of Patent Interferences of the U. S. Patent Office be set aside. Jurisdiction under 35 U.S.C. § 146 is admitted.

Plaintiff bases his claim on his U. S. Patent 2,558,241, granted June 26, 1951 on an application filed January 26, 1950.

Plaintiff alleged in the Patent Office that defendant’s applications did not disclose the invention in issue and that the invention had been in public use for over one year prior to the date defendant copied the claims from plaintiff’s patent.

Defendant herein prevailed before the Board of Patent Interferences on the ground that the invention was disclosed in his application Serial No. 649,309, filed February 21, 1946, and that plaintiff had neither alleged nor proved an earlier date. The Board held the allegations of public use to be irrelevant.

Defendant brought a motion for summary judgment alleging that the subject matter of his 1946 application was so clear, and the subject matter sufficiently simple, that the Court could determine, without a trial, that it disclosed the invention in issue. Defendant further contended that priority is the only issue in a suit under 35 U.S.C. § 146. The Court agrees with these contentions; and makes the following findings of fact and conclusions of law based on the entire record, including the pleadings, answers to interrogatories, and the certified documents referred to in the motion for summary judgment.

Before making the following findings and conclusions, the Court gave both sides an oral hearing with all the time to argue that they requested, and studied briefs submitted by the parties.

Findings of Fact

1. The complaint admits that plaintiff did not make his invention on or pri- or to February 21, 1946.

2. On February 21, 1946 defendant filed his application for patent Serial No. 649,309, entitled “Stalk Cutter.”

3. On January 26, 1950 plaintiff filed his application for patent which matured into U. S. Patent 2,558,241 on June 26, 1951.

4. On October 15,1951 defendant filed a divisional application Serial No. 251,-340 into which he copied claims 1 and 7 of plaintiff’s patent.

5. The U. S. Patent Office declared an interference the two counts of which correspond to said claims 1 and 7 of plaintiff’s patent. The Board of Patent Interferences awarded priority on both counts to defendant.

Conclusions of Law

1. The Court has jurisdiction of the subject matter and of the parties.

2. The Court is able to determine, by inspection, that the early Denton application of February 21, 1946 does disclose the invention in issue, and therefore will enter a summary judgment awarding priority to defendant Denton, since plaintiff has admitted that he is not entitled to a date earlier than February 21, 1946.

3. A suit under 35 U.S.C. § 146 will be dismissed as soon as it clearly appears that defendant is entitled to an award of priority, Sanford v. Kepner, 344 U.S. 13, 73 S.Ct. 75, 97 L.Ed. 12.  