YAN ORSDEL, Associate Justice.
This appeal is from the Commissioner of Patents in an interference proceeding, in which the issue is stated in a single count as follows:
“For hermetically sealing substances, the combination of a receptacle having on its exterior below the rim an upwardly facing shoulder that inclines outward at less than right angles to the exterior wall of the rim, a rectangular elastic gasket located on said shoulder, and a cap having a downward and outward flaring skirt with the inner wall of the flaring portion of said skirt shaped to engage the upper and outer angle of said gasket and - force the gasket diagonally to its seat on said shoulder when the cap is held down by exterior air pressure.”
This count is claim 2 of a patent issued to Robinson on July 13,1920. Davis copied the claim from the Robinson patent into his application, which was not filed until March 20, 1922, or about 20 months' after ■ the issue of the Robinson patent. The case turns wholly on issues of fact, and under the rule of evidence applied in such eases a' heavy burden is placed upon Davis in proving priority.
The record is a rather interesting one, and we have examined it with care, supplemented by the able briefs of counsel. In the elaborate opinions of the various tribunals of the Patent Office, the case has been reviewed at length, and in each instance priority was awarded to Davis. While the case is a close one, in view of a question of originality involved, we are of opinion that the conclusion thus reached is correct.
Inasmuch as the testimony has been reviewed in detail by the tribunals below, and especially in the able opinion rendered by the Board of Examiners in Chief, in which we fully concur, further consideration' here would amount merely to repetition.'
The decision of the Commissioner is affirmed.
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".