and that its publication had been procured by the assignee of the Peiler application.
Hatch and Carter insist that they had no part in the presentation of the article to the Patent Office. Dorsey insists that he had no part in its preparation, and he and Carter insist they had no part in its publication. It is claimed, therefore, that, as no conspiracy is charged, no one of them can be held responsible for any act of the others. The essential wrongdoing is taking part either in the preparation of the article, with knowledge that it was to be used in the Patent Office, without disclosure of the part that had been taken in its preparation by any person interested in the allowance of Peiler's claims, or the making use of the article in the Patent Office, with the knowledge that it was prepared by any person interested in the allowance of Peiler's claims, without disclosure of such participation. Any such participation, with such knowledge, was an inexcusable aid to the accomplishment of a scheme to deceive the Patent Office, and was conduct falling far short of the standard which the Commissioner of Patents had a right to expect of any registered practitioner in the Patent Office. There is ample evidence against each of the petitioners to support a finding of such participation with such knowledge without resort to the rule of evidence that, where a conspiracy is proved, each conspirator is answerable for acts of the others.
It is argued at much length by the petitioners that they were found guilty of misconduct other than that charged, and thus denied due process. With this contention I cannot agree. In my view, the charge in the rules to show cause is sufficient basis for findings which sustain the action of the Commissioner, and it sufficiently apprised the petitioners of the matters they were called upon to answer.
It is indeed tragic that the severe penalty of disbarment should be visited upon these petitioners for acts of such distance in the past. It is for this Court, however, only to say in this connection whether or not such delay constitutes a bar to the prosecution of the disbarment proceedings, or has so impaired the rights of petitioners to a fair defense that they cannot now be held accountable for their past conduct. I must answer both questions in the negative. The conduct of the petitioners called into question by the disbarment proceedings was not, nor does it appear that by reasonable diligence it could have been, known to officials of the Patent Office prior to the time that information and evidence as to such conduct became available during the trial of the case of United States against Hartford and other glass companies. After such information became known in that case and until the Hazel-Atlas and Shawkee cases were decided by the Supreme Court, the Commissioner of Patents had reasonable justification for not starting proceedings against these petitioners, whose conduct, although they were not parties to such litigation, was under consideration in said cases. No showing has been made that the delay has prejudiced the petitioners in their defense.
It is urged that disbarment of petitioners is too severe even though their conduct should be considered wrongful. That the Commissioner gave consideration to an alternate and milder discipline is quite evident from the fact that a minority of the Committee recommended only suspension. Having determined, after due notice, a fair hearing, and upon substantial evidence, that the petitioners were guilty of gross misconduct, it was in the discretion of the Commissioner to determine the proper disciplinary action in accordance with the applicable statute. I can find no abuse of such discretion here.
After full consideration of all of the contentions made by each of the petitioners, many of which I do not consider necessary to discuss in this memorandum, I am of the opinion that the orders of the Commissioners of Patents here under review should be affirmed. Appropriate orders will be submitted by counsel.
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