Kennicott v. Caps

SMYTH, Chief Justice. The Assistant Commissioner of Patents awarded priority of invention to Caps in an interference between his application and that of Kennicott, and the latter appeals. Improvements in an apparatus for softening water constitute the subject of the invention. There is only one count of the interference. It reads: 1. In a water-softening apparatus a reagent drum, means for passing water to be softened through the reagent in said drum, a water meter for measuring the water flowing through the said drum, a valve for shutting off the flow of water through the drum, and means operable by said meter for actuating the said valve. Caps alleged conception in January, 1915, and disclosure in February following. Fie filed his application in June, 1916. Kennicott in his original preliminary statement claimed that he had conceived the invention and reduced it to practice in December, 1915. His application was filed in March following. He is, therefore, the senior party. After Caps’ testimony had been completed, and Kennicott knew the dates claimed by him, he sought leave to amend his statement by alleging conception in February, 1914, nearly two years before the date first claimed, and about a year anterior to Caps. The three tribunals of the Office concurred in denying leave to amend, on the ground that he had failed to show diligence in discovering the assumed error in his first statement. They also concurred in holding, on the question of fact presented, that Caps was the first to conceive, and, being diligent thereafter, and up to the time of the filing of his application, was entitled to priority. It is a well-settled rule of decision in this court that where the tribunals of the Office concur with respect to the proper solution of a question of fact we will not [642] disturb their action, if there is any competent evidence to sustain it Greenawalt v. Dwight, 49 App. D. C.-, 258 Fed. 982, and cases there cited. We think the evidence here amply satisfies the rule, and therefore we affirm the decision of the Assistant Commissioner of Patents. Affirmed.