KIRBY v. REPLOGLE. (Court of Appeals of District of Columbia. Submitted November 15, 1920. Decided January 3, 1921.) No. 1350. Patents 113 (8)-Senior party awarded priority on two counts on which interference was dissolved. Where the Commissioner of Patents awarded priority of invention to R. as to two counts of an interference, but dissolved it as to other counts, holding two of said counts not patentable over the issue of another interference to which R. was a party and in which priority of invention was decided against him. Held that, where both interferences were appealed, and R. was successful in both cases, he was entitled to an award of priority on said two counts, as well as on the others. Appeal from the Commissioner of Patents. Interference proceeding between James B. Kirby and Daniel B. Replogle. From a decision of the Commissioner of Patents, awarding priority on two counts to Replogle and dissolving the interference as to the other four counts, Kirby appeals. Reversed as to two of the counts as to which the interference was dissolved, and affirmed as to the other counts. Harold E. Smith, of Cleveland, Ohio, and George E. Tew, of Washington, D. C., for appellant. Daniel Benson Replogle, of Berkeley, Cal., pro se. VAN ORSDEL, Associate Justice. This is a companion case to Replogle v. Kirby (No. 1327) · App. D. C. - 269 Fed. 862, decided this day. The cases were heard together. It is unnecessary to set out the counts of the issue, inasmuch as, with the exception of one point hereafter considered, we approve the disposition of the case made by the Commissioner of Patents. The issue is in six counts. The Commissioner awarded counts 2 and 3 to Replogle, and dissolved the interference as to counts 1, 4, 5 and 6. The Commissioner, however, in his opinion states that "Counts 5 and 6 are clearly unpatentable over Noguchi and should never have been included in this interference. Kirby has been defeated in an interference with Noguchi and of course cannot be granted these claims, and unless Replogle wins in the Replogle v. Noguchi interference, he cannot be allowed these claims. This interference therefore is dissolved as to counts 1, 4, 5 and 6." Inasmuch as we have held in the former case that Replogle is entitled to priority over Noguchi, it follows that he should also be awarded counts 5 and 6. The decision is affirmed as to counts 1, 2, 3 and 4, and reversed as to counts 5 and 6. Affirmed as to counts 1, 2, 3 and 4, and reversed as to counts 5 and 6. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (269 F.) HUGHES v. FALVEY et al. (Court of Appeals of District of Columbia. Submitted December 6, 1920. Decided January 3, 1921.) No. 3390. 1. Intoxicating liquors 236 (5), 255—Only small quantity of seized liquors can be retained, and is as complete evidence as entire amount. Where a large quantity of whisky was taken from the possession of one who was subsequently charged with unlawfully importing the whisky into the District, a small quantity of the whisky is as complete evidence of the offense as the entire quantity seized, so that only such small quantity can be retained by the officers for use as evidence in the prosecution. 2. Intoxicating liquors 256-Whether manner of seizure makes liquor inadmissible as evidence cannot be determined on replevin. In an action to replevy a quantity of whisky seized from plaintiff's possession, which the defendants petitioned to retain for use as evidence against plaintiff, the question of whether the manner of seizure was such that the liquor could not be used as evidence is not to be determined, but will be left for determination by the trial court, when the liquor is offered in evidence. Appeal from the Supreme Court of the District of Columbia. Replevin by Fred J. Hughes against William F. Falvey and others, to recover whisky taken by defendants, as police officers, from the possession of plaintiff. From an order dismissing the petition of defendant Falvey, that the writ be suspended and the whisky returned to him, pending the disposition of the charge against plaintiff for which it was retained as evidence, but ordering the marshal to retain the whisky until further order, plaintiff appeals. Reversed and remanded. Alvin L. Newmeyer and William E. Leahy, both of Washington, D. C., for appellant. John E. Laskey, of Washington, D. C., for appellees. SMYTH, Chief Justice. The appellees, police officials of the District of Columbia, in conjunction with internal revenue officers of the government, seized 197 cases of whisky found in the possession of Hughes, who shortly afterwards instituted an action in replevin against the appellees for its recovery. The marshal executed the writ by taking the whisky into his possession. Subsequently Falvey, a member of the police force, filed a petition in the replevin action, alleging that the whisky came into the possession of himself and Hesse, property clerk of the police department, as evidence of crime; that there was pending against Hughes in the police court the charge of having unlawfully imported the whisky into the District; and asking that the writ be suspended and the whisky returned to Falvey pending the disposition of the charge. The court dismissed the petition, but ordered that the marshal retain the whisky until the further order of the court. The case is here on special appeal. [1] In Dorsey v. District of Columbia and Edwin B. Hesse, 49 App. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 269 F.-55 D. C. 365, 265 Fed. 1005, the facts were quite similar to those in the case before us. We there said: "Assuming that detention, followed by prompt action on the part of the officers, is authorized, there seems to be no justification for holding a large quantity of liquors merely as evidence of crime, since a pint bottle of the whisky would furnish as complete evidence of the offense alleged to have been committed as would the entire shipment seized and detained. The offense consists in bringing the liquor into the District, and is as complete by bringing in a pint bottle as a barrel." That decision rules this case. The appellees may retain a small quantity, say a quart, and the rest should be returned to Hughes. [2] Hughes urges that, because of the way the liquor was seized, it cannot be used as evidence against him; but that is a question to be disposed of by the trial court, when the liquor is offered in evidence. We express no opinion concerning it. The order appealed from is reversed, at the cost of the appellees, and the case remanded for further proceedings in harmony with this opinion. Reversed and remanded. KISOVITZ v. ROSENBERG. (Court of Appeals of District of Columbia. Submitted November 12, 1920. Decided January 3, 1921.) No. 1349. 1. Patents 90 (5)—Foreign patent, disclosing interference claim, held constructive reduction to practice. An application for a foreign patent, which discloses the invention in issue in an interference proceeding and contains a claim broad enough to include the issue, is a constructive reduction to practice of the invention in issue, though there was no claim of the specific device of the issue. 2. Patents 90 (5)—Application within limited time after foreign application is effective on date of foreign application. Where an inventor filed his application for a United States patent within the time limited by Rev. St. § 4887 (Comp. St. § 9431), after his application for a foreign patent was filed, the United States application has the same effect as if it had been filed on the date the foreign application was filed. Appeal from the Commissioner of Patents. Interference proceedings between Samuel Kisovitz and Benjamin Rosenberg. From a decision of the Commissioner of Patents, awarding priority to Rosenberg, Kisovitz appeals. Affirmed. C. P. Goepel, of New York City, and W. G. Henderson, of Washington, D. C., for appellant. William F. Nickel, of New York City, for appellee. VAN ORSDEL, Associate Justice. This is an appeal from the decision of the Commissioner of Patents in an interference proceeding, and was determined by all of the tribunals below in favor of appellee. The invention is described in count 2 of the issue as follows: For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Inderes (269 F.) "2. A box comprising a body portion, and a cover therefor hinged to the rear end of said body portion, said cover being formed of transverse unequal sections connected by a hinge line, and the forward section being longer than the body of the rear section and capable of being folded thereon and therewith turned into a substantially vertical position supporting the body of the box in an inclined display position, and said forward section being formed integrally with a hinged lip adapted to engage said body portion and lock said cover thereto when said cover is in its folded prop position." [1] The case turns upon the right of appellee to claim the filing date of a British application as his date of constructive reduction to practice. This is contested chiefly upon the ground that neither the British application nor the patent issued thereon contained a claim commensurate to the claims here in issue. It is true there is no claim in the British patent to the specific device of the present issue, nor is such claim in the United States application. But the same disclosure appears in each application, and each contains a claim broad enough to include the present issue. It therefore follows that the date of filing the British application constituted a constructive reduction to practice of the invention in issue. [2] Appellee's British application, filed February 9, 1916, and his United States application, filed January 16, 1917, fell within the limitations of section 4887, Rev. Stats. (Comp. St. § 9431). This gives the United States application the same force and effect as it would have if it had been filed on the date the British application was filed. Inasmuch as the preliminary steps leading up to the filing of the British application were found by the tribunals below to have occurred at a time prior to any date to which appellant can lay claim, and we concur in this finding, appellee must prevail. The decision of the Commissioner of Patents is affirmed, and the clerk is directed to certify these proceedings as by law required. Affirmed. EVERETT v. FORST. (Court of Appeals of District of Columbia. Submitted December 6, 1920. Decided January 3, 1921.) No. 3444. 1. Guardian and ward 103-Inadequacy of price insufficient ground for refusing confirmation of sale. Mere inadequacy of price is not in itself sufficient to justify the court in refusing to ratify guardian's sale of land, but it must appear that such inadequacy is due to surprise, fraud, mistake, or some unfairness practiced at the sale. 2. Guardian and ward 105 (1)—Increased offer held insufficient to authorize reopening sale. After the court had entered an order nisi for the sale of property by guardian for $37,500, a new offer of $39,000 is insufficient in itself to authorize the court in its discretion to reopen the sale. 3. Guardian and ward 105 (1)-Reservation by court cannot enlarge discretion to reopen sale. A reservation by the court, at the time an order nisi approving a guardian's sale was made, that he would not reopen the sale unless a specified For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes increase of price was offered, does not enlarge the discretion fixed in him to reopen the sale. 4. Guardian and ward ~105 (1)—Bidder at first sale must submit best bid. A bidder, who was represented at a guardian's sale by an agent, must authorize her agent to submit her best bid at that sale, and cannot, after ascertaining the limit of rival bidders, have the sale reopened by making an offer of a larger price. 5. Guardian and ward confirmed. 103-Resale to new bidder at increased price Where the result of reopening the bid after an order nisi for the sale of property by a guardian had been made was an offer 20 per cent. greater than the best bid at the first sale from one who had no opportunity to bid at the first sale, the sale to the new bidder must be confirmed, in consideration of the rights of the infant, though the sale was reopened because of an increased offer by another, which was insufficient to justify that action. Appeal from the Supreme Court of the District of Columbia. Proceeding by Frances E. Forst, as guardian, for the sale of real estate. From an order dismissing the petition of Louis A. Everett, that his bid be accepted and the property conveyed to him, and directing the conveyance to another, petitioner appeals. Affirmed. Harry F. Kennedy, of Washington, D. C., for appellant. Wade H. Ellis and A. H. Ferguson, both of Washington, D. C., for appellee. VAN ORSDEL, Associate Justice. This case arose through the sale of real estate by a guardian under an order of court. It appears that appellee, as guardian for an infant, was directed by the court to sell certain lots in the city of Washington belonging to the estate. After a number of offers for the property had been submitted, the guardian reported that appellant had made an offer of $37,500, whereupon the court entered an order nisi, to "become final and absolute on the 26th day of January, 1920, unless cause to the contrary shall be shown on or before said date." On January 27th, one day after the date when the order nisi was decreed to become final, appellant petitioned the court for ratification of the order. On the same day the guardian reported that, on January 24th, she had received an offer of $39,000 from one Doyle, representing one Daisy Edelin, and called attention to the fact that when the order nisi was made "the court stated that he would ratify the sale at $37,500 nisi, with the understanding that he would not reopen the matter unless a material increased offer was made for the property, and thereafter the court stated to counsel that he would not consider any offer of less than $1,500 above the offer of said Everett as a substantial increase." Upon this report, the court entered an order vacating and setting aside the order nisi, dismissing appellant's petition, and directing the guardian to receive further bids for the property. From this, appellant appealed to this court, where the appeal was dismissed, for the reason that the order appealed from was not a final order. When the mandate went down, the court renewed the order directing the guard For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |