
    RAGSDALE v. GATHMANN.
    (Court of Appeals of District of Columbia.
    Submitted May 13, 1924.
    Decided June 2, 1924.)
    No. 1658.
    Patents <®=>I06(I) — In interference proceeding, sole question is one of priority.
    In an interference proceeding, sole question for Court of Appeals is one of priority.
    Appeal from Commissioner of Patents.
    Interference proceeding between Earl J. W. Ragsdale 'and Emil Gathmann. Erom decisions awarding priority to the latter, the former appeals.
    Affirmed.
    Melville Church, of Washington, D. C., and Lucius E. Varney and Manvel Whittemore, both of New York City, for appellant.
    Lloyd B. Wight, of Washington, D. C., for appellee.
    Before ROBB and VAN ORSDER, Associate Justices, and SMITH, Judge of the United States Court of Customs Appeals.
   ROBB, Associate Justice.

Appeal from concurrent decisions of the Patent Office tribunals in an interference proceeding awarding priority of invention to Gathmann, whose patent was issued more than a year prior to the filing date of Ragsdale’s application.

The tribunals of the Patent Office, after independent examination of the evidence, each reached the conclusion that Gathmann was the first to conceive and reduce to practice the particular invention here involved, namely:

“A practice bomb, comprising a body portion of plastic material vanes having perforations in them through which the plastic material extends and forms keys which firmly connect the vanes with the body.”

With this finding we concur. However, Ragsdale contends that, inasmuch as prior to the entry of Gathmann into the field he had produced a bomb in which the method of fastening or anchoring the vanes in the concrete.body differed from that defined in the issue in this interference, he should be awarded priority of invention. In the early Ragsdale structure the vanes were not perforated, as required by the issue here, and his claim to priority on this branch of the case is based upon the theory that he may invoke the doctrine of equivalents in an interference proceeding. But this he may not do. The Patent Office, through the allowance of this claim, has determined, so far as this proceeding is concerned, that there is a patentable difference between the two structures. In such a case, therefore, the question before us is one merely of priority, as we many times have ruled. In Llewellyn v. Upson, 45 App. D. C. 17, 21, we said:

“Upson here contends, as he did before the Patent Office, that there is no patentable difference between the so-called broad counts awarded him, and those awarded to Llewellyn. What our opinion might be on this question, were it before us, we need not intimate, since it is settled law that in an interference proceeding we must assume that each count is patentably different from every other count. We have no more jurisdiction to question the patentability of the counts in an interference proceeding than in an ex parte proceeding.”

See, also, Slingluff v. Sweet, 45 App. D. C. 302, where the question was again considered and the same conclusion reached.

It results that the decision must be affirmed.

Affirmed. 
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