McBride's original application and the Teeple application while they were copending and before the patent to Teeple issued. Rules 93 and 94 of the Rules of Practice of the United States Patent Office, 35 U.S.C.A. Appendix, make provision for the institution and declaration of interferences and are applicable here. Neither McBride's original application nor his patent contained any claim directed to the treatment of powder with a "liquid explosive material of relatively high potential." Even the disclosure of such material was so obscure that it was not discovered until several years after the issuance of both the McBride and Teeple patents. Furthermore, the failure of the Patent Office to declare an interference, even if inadvertent, does not justify the reissue of a patent. In re Bostwick, 102 F.2d 886, 26 C.C.P.A., Patents, 1117; In re Guastavino, 83 F.2d 913, 23 C.C.P.A., Patents, 1179.
The plaintiffs also rely upon the "mistake" of their attorneys in considering that the McBride original patent did not disclose any "liquid explosive material of relatively high potential," particularly their belief that trinitrotoluene (TNT), which was mentioned as a possible material in the specification (page 5), was a deterrent and not an accelerator and, therefore, was not within the meaning of the language quoted. Because of this belief, they concluded that they had no disclosure of an accelerator in the McBride patent and, therefore, in the taking of testimony in behalf of McBride in the Interference proceeding in the Patent Office June 8-10, 1936, did not rely upon the earlier McBride patent, No. 1,955,927. However, when it appeared during the taking of testimony on behalf of Teeple July 7-13, 1936, that these explosives of high potential included deterrents and after the closing of the Teeple testimony, on July 17, 1936, counsel gave notice of their intention to rely upon the disclosure of the earlier McBride patent. But, as we have seen, the instant reissue application was not filed until the 6th day of February, 1939, more than two and one-half years after learning that the language of the Teeple patent, "liquid explosive material of relatively high potential," included deterrents as well as accelerators.
It is to be noted that Mr. Fred Olsen, who testifies as a witness here, is and since the year 1929 has been the technical director of the Western Cartidge Company, the corporate plaintiff in this proceeding. Mr. Olsen is an expert on explosives and explained (R. 24) that the purpose of applying surface treating agents to powder grains was to regulate the speed of burning of the powder grain. He said: "If it were too slow for the particular weapon, it was necessary to add something to speed the powder burning; and that was known as an accelerator. Sometimes it was desirable to slow down the powder burning; and in that case a deterrent would be added to the surface of the powder." He knew and so testified that trinitrotoluene, or as commonly known TNT, was an accelerator and, when asked by counsel for the first time a day or so before the hearing of this cause, so advised him.
The Court is of opinion that the mistaken belief of counsel as to the nature of TNT, under the circumstances here disclosed, is not such a mistake as is contemplated by R.S. § 4916, 35 U.S.C.A. § 64, and does not excuse the failure to timely proceed with the filing of the reissue application.
A more serious defense is that of res judicata. As we have seen, priority of invention was finally awarded to Teeple. McBride v. Teeple, 129 F.2d 328, 29 C.C.P.A., Patents, 1084. We are urged to ignore this decision of the United States Court of Customs and Patent Appeals because that court is an administrative tribunal -- "an arm of the Patent Office," whose decisions are not binding on this court in a proceeding under R.S. § 4915, 35 U.S.C.A. § 63, particularly when the decision is predicated upon "a clear mistake of law." (Plaintiffs' Reply Brief, p.7.)
A similar argument was rejected by the United States Court of Appeals for the District of Columbia in the case of Chase v. Coe, 74 App.D.C. 152, 122 F.2d 198. Chief Justice Groner, delivering the opinion of the court, at page 154 of 74 App.D.C; at page 200 of 122 F.2d, said: "The ingenious argument of counsel in this respect is well done, but we are unable to find any legal or logical basis on which to sustain it. We think, as we have said in our former opinions, that the decision of the Court of Customs and Patent Appeals, after submission of the case to it without protest, is conclusive as to all the matters adjudicated by it. The anomalous procedure of a new appeal through an equity proceeding never was intended and, as we have already suggested, would defeat the purpose of the 1927 amendments to R.S. § 4915, which was to limit resort to that section to cases in which the option to go to the Court of Customs and Patent Appeals had not been availed of."
In this connection, see, also, Blackford v. Wilder, 28 App.D.C. 535; In re Marconi, 38 App.D.C. 286; In re Wasserfallen, 54 App.D.C. 367, 298 F. 826; Hemphill Co. v. Coe, 74 App.D.C. 123, 121 F.2d 897.
It follows that claim 15 is unpatentable to the plaintiffs and, therefore, the complaint must be dismissed.
It is so ordered and counsel for the defendant will prepare and submit appropriate findings of fact and conclusions of law.
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