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ABBOTT v. SHEPHERD

January 6, 1941

ABBOTT et al.
v.
SHEPHERD et al.



The opinion of the court was delivered by: BAILEY

Pursuant to Rule 52 of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, the Court hereby finds the facts specially, states separately its conclusions of law thereon, and directs the entry of the appropriate judgment, as follows:

Findings of Fact.

 1. This is an action under R.S., Sec. 4915, 35 U.S.C.A. § 63, brought by the losing parties to a Patent Office interference proceeding, seeking a decree adjudging the individual plaintiff to be the inventor of the subject matter of the said interference and the corporate plaintiff, his assignee, to be entitled to receive a patent for such subject matter.

 2. The plaintiff Edward J. Abbott is a citizen of the United States and a resident of Wilton, New Hampshire; and the plaintiff Abbott Machine Company is a corporation organized and existing under the laws of the State of New Hampshire.

 3. The defendant Thomas Lewis Shepherd, originally the sole defendant, is a resident and subject of England.

 5. On September 22, 1934, the plaintiff Edward J. Abbott filed, in the Patent Office, an application, Serial No. 745,105, for improvements in a Process of Making Fabric, assigning the said application to its present owner, the plaintiff Abbott Machine Company.

 6. On or about November 27, 1935, the Commissioner of Patents declared an interference between the said Abbott application, an application of the defendant Thomas Lewis Shepherd, Serial No. 15,430, and an application of another individual who did not continue in the contest.

 7. The said Shepherd application, Serial No. 15,430, was filed April 8, 1935 as a division of an earlier Shepherd application, Serial No. 724,814, filed May 9, 1934; the latter application being based upon and claiming the priority of a still earlier Shepherd British application filed March 19, 1934.

 8. The subject matter of the interference as embodied in the several counts is as follows:

 "Count 1. Process of making fabric including elastic rubber or rubber-composition yarn, comprising stretching the elastic yarn, applying size thereto to restrain it against contraction from this stretched condition, manufacturing the fabric, and removing the size from the elastic yarn of the fabric.

 "Count 2. Process of making fabric including elastic rubber or rubber-composition yarn, comprising as a preliminary operation, applying size to the yarn to render the yarn approximately inelastic during manufacture of the fabric, manufacturing the fabric, and removing the size from the thus treated yarn thereof.

 "Count 3. An inherently elastic thread comprising a body of rubber or rubber composition having a soluble size deposited thereupon to hold said body in a stretched and substantially inelastic condition so that it may be woven or knitted without elongating or contracting from ...


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