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United States Court of Appeals 

for the 

District of Columbia Circuit 



TRANSCRIPT OF 
RECORD 






United States Court of Appeals for the 


District of Columbia 


APRIL TEEM, 1934. 


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' ''vL* y-4! 


. (Equity No. 48,832) 

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JOHN A. RICE AND THE BUBBLESTONE COM- 

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PANY, APPELLANTS, 


v 

■ *. A k -• .- 


- • 


ERIK CHRISTIAN BAYER, CARLISLE K. ROOS AND iUA 
UNITED STATES GYPSUM COMPANY, 


and 




No. 6286 


(Equity No. 48,833) 


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v A v^v»y5S. 
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- 


JOHN A. RICE AND THE BUBBLESTONE COM- - -.■% i 

PANY, APPELLANTS, V- 


CARLISLE K. ROOS, UNITED STATES GYPSUM 
COMPANY AND ERIK CHRISTIAN BAYER. 


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APPEALS FROM THE SUPREME COURT OF THE DISTRICT OF rl 

COLUMBIA. ' yi-.:- 


FILED AUGUST 17, 1934. 

. .. ^ , '! . ’ ? ‘ • 

PRINTED SEPTEMBER 5, 1934. 


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United States Court of Appeals for the 

District of Columbia 

APRIL TERM, 1934 

No. 6285 


JOHX A. RICE AND THE BUBBLESTOXE COM- 

PAXY, APPELLAXTS, 

VS. 

ERIK CHRISTIAN BAYER, CARLISLE K. ROO& AND 
UNITED STATES GYPSUM COMPANY, j 

and 

No. 6286 

JOHN A. RICE AND THE BUBBLESTOXE COM¬ 
PANY, APPELLANTS, j 

vs. 

CARLISLE K. ROOS, UNITED STATES GYPSUM 

COMPANY AND ERIK CHRISTIAN BAYER. 

T 

i 

— 

APPEALS FROM THE SUPREME COURT OF THE DISTRICT OF 

COLUMBIA. 


INDEX. 

Caption . 

Petition for leave to tile a bill of review 

Affidavit of Charles Hude. 

Frank W. Dahn . 

John Parry . 

Grant Curry. 

Grant Curry . 

Don Rose . 

H. H. Byrne . 


Orlginali Print 

a 1 

1 | 2 

" I ^ 

9 | 8 

17 14 

19 1C 

21 j 17 

23 | 18 

24 | 19 


Judd & Detweiler (Inc.), Printers, Washington, D. C., August 23, 1934. 












11 


INDEX 


Original Frint 


Motion to comitel production of document . 26 20 

Affidavit in support of motion to compel production of 

document, &c. 33 27 

Cablegram . 30 32 

Copy of original Danish document . 40 32 

Translation . 41 33 

Order . 41 33 

Exceptions noted . 42 34 

Order denying motions, &e. 43 34 

Exceptions noted . 44 36 

Memorandum : Orders noting appeal and for issuance of 

citations filed . 44 36 

Order allowing appeal and fixing appeal undertakings.. 4.") 36 

Citation (48832) 46 37 

Citation (48833) . 47 3S 

Memorandum : Nos. 48832 & 48833. undertakings on ap¬ 
peal by Rice et al.. 8100 approved and filed . 4S 3S 

Assignments of error . 48 39 

Designation of record . 49 40 

Clerk's certificate . 52 42 



















United States Court of Appeals for the 

District of Columbia i 


No. 6285. 

John A. Rice et al., Appellants, 

vs. 

Erik Christian Bayer et al., 
and No. 6286 . 

John A. Rice et al., Appellants, 


Carlisle K. Roos et al. 


i 

Supreme Court of the District of Columbia. 
Consolidated Causes. 

In Equity. j 


Nos. 48,832 and 48,833. 


Both Suits Under Section 4915 Revised Statutes of the 
United States to Obtain a Patent. 

Erik Christian Bayer 


John A. Rice and The Bubblestone Company; Parlisle 
K. Roos and United States Gypsum Company 

and 

John A. Rice and The Bubblestone Company 


Carlisle K. Roos and United States Gypsum Company, 

and Erik Christian Bayer. 

Be it remembered, That in the Supreme Court of the Dis¬ 
trict of Columbia, at the City of Washington, in shid Dis- 

1—6285a 


2 


J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


trict, at the times hereinafter mentioned, the following 
papers were filed and proceedings had, in the above-entitled 
causes, to wit: 

1 Petition for Leave to File a Bill of Review. 

Filed February 28, 1934. 

In the Supreme Court of the District of Columbia. 

Consolidated Causes. 

In Equity. 

Nos. 48,S32 and 48,833. 

Both Suits Under Section 4915 Revised Statutes of the 
United States to Obtain a Patent. 

Erik Christian Bayer 
vs. 

John A. Rice and The Bubblestone Company; Carlisle 
K. Roos and United States Gypsum Company 

and 

John A. Rice and The Bubblestone Company 

vs. 

Carlisle K. Roos and United States Gypsum Company, 

and Erik Christian Bayer. 

To the Honorable the Judges of said Court: 

Now come John A. Rice and The Bubblestone Company, 
Plaintiffs in the above entitled Cause filed at No. 48,833 in 
Equity, and Defendants in the above entitled Cause filed at 
No. 48,832 in Equity, by Don Rose, Edward E. Reinhold 
and H. II. Byrne, their Attorneys, and represent to this 
Honorable Court as follows: 

1. That on or about the 19th day of September, 1928, 
your Petitioners filed their Bill of Complaint against Car¬ 
lisle K. Roos, United States Gypsum Company, and Erik 
Christian Bayer, in this Court at No. 48,833 in Equity, 
under and in pursuance of Section 4915 of the Revised 
Statutes of the United States, for the purpose of obtain- 


I 


J. A. BICE ET AL. VS. E. C. BAYER ET AL. 3 

* 

ing a patent, and on or about the 8th day of Novem- 

2 her, 1929, your said Petitioners filed an amendment 
to their said Bill of Complaint; and 

2. That on or about the said 19th day of September, 1928, 
Erik Christian Bayer filed his Bill of Complaint against 
John A. Rice, The Bubblestone Company, Carlisle ,K. Roos, 
and United States Gypsum Company, in this Court at No. 
48,832, in Equity, which Bill of Complaint was likewise filed 
under and in pursuance of Section 4915 of the Revised Stat¬ 
utes of the United States, for the purpose of obtaining a 
patent; and 

3. That each of the Defendants above set forth, having 
been served with process of subpoena, duly appeared and 
filed an Answer to the said Bills of Complaint and the said 
Amendments thereto; and 

4. That on or about the 19th day of December, 1929, the 
Attorneys for all the Parties in the above mentioned 
Causes, entered into a stipulation consolidating the said 
Causes for trial, and the said stipulation was duly filed in 
each of said Causes; and 

5. That thereafter, the said Consolidated Causes were 
tried before this Honorable Court sitting in Equity, and 
on or about the 6th day of March, 1933, a Final Decree was 
rendered in each of the above Consolidated Causes bv this 

i • 

Court, dismissing each of the said Bills of Complaint which 
were filed at Nos. 48,832 in Equity and 48,833 in Equity, 
and directing the Commissioner of Patents to issue Letters 
Patent on the process in issue to the Party, Carlisle K. 
Roos; and 

6. That on or about the 27th day of March, 19^3, your 
Petitioners and the said Erik Christian Bayer, dijily per¬ 
fected their respective Appeals from the said Decrees of 

this Honorable Court to the Court of Appealp of the 

3 District of Columbia, and the Consolidated |Record 
has been filed in that Court but has not as \]et been 

printed; and | 

7. That the said Appeals of your Petitioners and the said 
Erik Christian Bayer are now pending in the Court of Ap¬ 
peals of the District of Columbia, but that Honorablb Court 
has neither considered nor issued mandates therein, jior has 
it in any manner whatsoever determined the same; and 

8. That since the time of the rendering of said Decrees 
by this Honorable Court, and on or about the 6th day of 
January, 1934, your Petitioners have discovered new and 



4 


J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


relevant evidence of importance in the said Consolidated 
Causes in Equity, and particularly that the Party, Erik 
Christian Bayer, filed an application for Letters Patent, 
upon the process in issue in said Consolidated Causes, in 
the Patent Office of the Kingdom of Denmark on the 12th 
day of September, 1921, and that the contents of said ap¬ 
plication are identical with the contents of the application 
filed bv the said Erik Christian Bayer in the Patent Office 
of the Kingdom of Denmark on the 11th day of September, 
1922; that the said application of September 12, 1921 was 
laid open for public inspection in pursuance of the Laws of 
the Kingdom of Denmark on the 18th day of April, 1922, 
it having been at that time the practice of the Danish Pat¬ 
ent Office to issue typewritten copies thereof upon request, 
and notice of said public inspection having been published 
in Dansk Patenttidende, Volume 28, Number 16; that said 
application of September 12, 1921 was withdrawn from the 
Patent Office of the Kingdom of Denmark by the said Erik 
Christian Bayer on the 12th day of September, 1922; that 
the said Party, Erik Christian Bayer, falsely and fraudu¬ 
lently concealed the facts relating to his said application 
which was filed in the Patent Office of the Kingdom 
4 of Denmark on the 12th day of September, 1921, and 
in his Oath, which is attached to his application for 
Letters Patent on the process in issue which was filed in 
the Patent Office of the United States on the 8th dav of 
September, 1923, the said Party, Erik Christian Bayer, 
falsely swore that i ‘no application for patent on said im¬ 
provement has been filed by himself or his representatives 
or assigns in any country foreign to the United States, 
except as follows: In Denmark the lltli of September, 1922, 
patent No. 31,916,” the whole of which Oath reads as 
follows: 

“Kingdom of Denmark, 

City of Copenhagen, 

American Consulate General, ss: 

“Erik Christian Bayer, the above-named petitioner, 
being sworn (or affirmed), deposes and says that he is a 
citizen of the Kingdom of Denmark and resident of No. 13 
Nordre Frihavngade, Copenhagen, Denmark; that he verily 
believes himself to be the original, first and sole inventor 
of the improvement in method of manufacturing building 
materials described and claimed in the annexed specifica- 



J. A. RICE ET AL. VS. E. C. BAYER ET AL. 5 

i 

I 

tion; that he does not know and does not believe that the 
same was ever known or used before his invention or dis¬ 
covery thereof or patented or described in any printed pub¬ 
lication in any country before his invention or discovery 
thereof, or more than two years prior to this application, 
or in public use or on sale in the United States for more 
than two years prior to this application; that said inven¬ 
tion has not been patented in any country foreign to the 
United States on an application filed by himself or h^s legal 
representatives or assigns more than twelve months prior 
to this application; and that no application for patient on 
said improvement has been filed by himself or his repre¬ 
sentatives or assigns in any country foreign to the tlnited 
States, except as follows: in Denmark the lltli September, 
1922, patent No. 31916. 

ERIK CHRISTIAN BA^ER. 

'* 

“Sworn and subscribed to before me this 27th day of 
August, 1923. 

" [seal.] E. GIESSING, 

Vice-Consul of the United States 
of America , at Copenhagen , Denmark. 

Foreign Fee Stamp. 

#9784”. 

and that the substance of the said newly discovered 
5 and relevant evidence of importance, which! is of 
such a nature as to justify a review and reversal of 
the said Decrees which have been entered in the above Con¬ 
solidated Causes, is set forth in the affidavits of Charles 
Ilude, of Copenhagen, Denmark, Grant Curry, of Pitts¬ 
burgh, Pennsylvania, and John Parry, Esq. of New York 
City, copies of which affidavits are attached heretjo and 
made part hereof; and 

9. That the said newly discovered and relevant evidence 
of importance in the above Consolidated Causes in Equity 
has the effect in law of depriving the said Party, Erik 
Christian Bayer, from any benefits whatsoever under the 
International Convention, and so prevents the said Party, 
Erik Christian Bayer, from claiming a priority date earlier 
than the 8th day of September, 1923, the date of the filing 
of his United States Application for Letters Patent in the 
process in issue, and prevents the United States Gypsum 
Company from acquiring any rights of priority ip the 


6 


J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


process in issue from the contract entered into by and 
between the said United States Gypsum Company and 
Christiania & Nielsen, Bayer’s assignee, of date September 
23, 1926; and 

10. That the said newly discovered and relevant evi¬ 
dence of importance in the above Consolidated Causes in 
Equity has the further effect in law of creating and setting 
up a statutory bar to the issuance of Letters Patent of the 
United States to the said Parties, Carlisle K. Poos and the 
United States Gypsum Company under Section 4886 of the 
Revised Statutes of the United States, and, therefore, has 
the effect of requiring a review, reversal and setting aside 
of the said Decrees rendered and entered in the above Con¬ 
solidated Causes in Equity by this Honorable Court; 
and 

6 11. That said newlv discovered and relevant evi- 

deuce of importance in the above Consolidated 
Causes in Equity was not known to your Petitioners, and 
could not, by the exercise of reasonable diligence, have been 
discovered by them so as to make use thereof at the trial 
of the said Consolidated Causes in Equity, before the time 
of the rendering of the said Decrees therein by this Honor¬ 
able Court, all of which more fully appears from the affi¬ 
davits of Grant Curry, Esq. of the City of Pittsburgh, 
H. H. Byrne, Esq. of the City of Washington, D. C., and 
Don Rose, Esq. of the City of Pittsburgh, copies of which 
affidavits are attached hereto and made part hereof. 

Wherefore,' your Petitioners respectfully pray leave to 
file their Bill of Review against Carlisle K. Roos, United 
States Gypsum Company, and Erik Christian Bayer in this 
Court, to permit the introduction of the said newly dis¬ 
covered and relevant evidence of importance into the record 
of the above Consolidated Causes in Equity, and to review, 
reverse and set aside said Decrees entered in the above 
entitled Consolidated Causes in Equity. 

Respectfullv submitted, 

DON ROSE, 

EDWARD E. REINHOLD, 

H. H. BYRNE, 

Attorneys for John A. Bice and 

The Buhblestone Company , 
Petitioners Herein . 


Dated February 28th, 1934. 



J. A. RICE ET AL. VS. E. C. BAYER EX AL. 


I 


7 


Affidavit. 


Kingdom of Denmark, 

City of Copenhagen, 

Consulate General of the 

United States of America , ss: 

I, Charles Hude, Engineer and Patent Agent of Copen¬ 
hagen, a subject of the King of Denmark and with postal 
address of Vestervoldgade 86, do hereby make cjath and 
say that I am President of the Association of Daiiish Pat¬ 
ent Agents and have been engaged in practice of the Pat¬ 
ent Law for over 38 years, and that according to the Dan¬ 
ish “Dansk Patenttidende” of the vear 1922, which is the 
Official publication issued by the Patent Office of Denmark, 
it appears in Xo. 16, Yol. 28, issued on April 18th, 1922, on 
page 3 that on the date of April 18th, 1922 an application 
for patent (Serial Xo. 54) was laid open for public) inspec¬ 
tion relating to a “Process for the manufacture oij porous 
building materials”, applicant Erik Christian Bayer, of 
Xo. 110, Xorrevoldgade, which application was pled on 
September 12th, 1921. | 

In the same volume of “Dansk Patenttidende”! Xo. 39 
issued on September 25th, 1922 Page 3 on Official ijiotice is 
found stating that: “On September 12th, 1922 an applica- 
tion Serial Xo. 54 filed by E. C. Bayer relating to a process 
for the manufacture of porous building materials was with¬ 
drawn. The application was laid open for public inspec¬ 
tion on April 18th, 1922”, and in Xo. 48 of the sai|ne Vol¬ 
ume issued on the 27th November 1922 on page 3 ife found 
a notice from the Patent Office stating that a patent appli¬ 
cation of Serial Xo. 39 concerning a process for the! manu¬ 
facture of porous building materials was laid open 
8 for public inspection. This application was pled by 
Erik Christian Bayer, of No. 110, Xorrevoldgade, and 
the application was filed on September 11th, 1922,, 

In Volume 29 of the same Official publication No. 26 of 
June 25th, 1923 on page 3 the following Official notice was 
stated: “Issued patent No. 31916, June 19th, 1923, Pro¬ 
cess for the manufacture of porous building material^, Erik 
Christian Bayer of Copenhagen, No. 110, Norrevoldgade, 
date of filing September 11th, 1922”. The printed copy of 
this patent was issued on July 2nd, 1923. 


8 


J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


Printed copies of the numbers of the “Dansk Pattent- 

tidende” referred to above and certified bv the Patent Of- 

* 

fice as being true copies are attached. 

On the 6th 'of January 1934 I applied to the Patent Office 
for two certified copies of the first application of Bayer’s 
which was published on April 18th, 1922 in “Dansk Patent - 
tidende” Xo. 16, Yol. 28. The head clerk of the Patent 
Office promised to have the copies ready and certified by 
Tuesdav 9th Januarv 1934 in the afternoon, and in the 
conversation with the head clerk, Mr. K. Holten, and the 
secretary, Mr. Andersen, I got a definite statement from 
them that this first application of Bayer’s, Serial Xo. 54, 
published April 18th, 1922 was identical with Bayer’s sub¬ 
sequent patent Xo. 31916 on which the application was filed 
on September 11th, 1922, i. e. one year later. At the time 
this statement was made the two gentlemen, Mr. Holten 
and Mr. Andersen, were comparing the documents of the 
first Bayer’s application of September 12th, 1921 with his 
issued patent Xo. 31916, and they were prepared to issue 
the ordered copies. 

In the afternoon of Tuesdav 9th Januarv 1934 1 was 
informed bv the Patent Office that thev had changed 
9 their rules and that thev would not issue the ordered 
copies of Bayer’s first patent application, but on 
application the Commissioner of Patents was prepared to 
state in writing that they refused to issue such copies. My 
application with the Commissioner’s endorsement of the 
refusal is attached. 

CHARLES HYDE. 

Sworn and subscribed before me this 10th day of Jan¬ 
uarv 1934. 

‘ [seal.] i LAUREXCE AY. TAYLOR, 

Vice Consul of the United States of 

America, at Copenhagen, Denmark. 

($2 Consul Fee Stamp.) 

Fee Xo. 101. 

Received $2.00. Kr. 9.00. 

Affidavit. 

District of Columbia, ss: 

Frank AY. Dahn, being duly sworn, deposes and says 
that he is a citizen of the United States, residing in Mont¬ 
gomery County, Maryland; 


J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


9 


That he is a member of the Bar of the District of Co¬ 
lumbia ; ! 

7 # I 

That he is familiar with the Danish language and is 
qualified to translate the same; j 

That he has translated extracts taken from thei“Dansk 
Patenttidende’’ of April 18, September 25 and November 
27, 1922, and June 25, 1923, which extracts, in translated 
form, have been attached to the specified nuipbers of 

10 the “Dansk Patenttidende” and copies of which have 
been attached to and made part of this affidavit; and 

that such translations are true and correct to the best of 
his knowledge and belief. 

F. W. DAHX. 

I 

Subscribed and sworn to before me, a Notary i Public, 
this 27th day of February, 1934. i 

[seal.] * CATHARINE S. WILTON, 

Notary Public, J9. C. 

\ 

Directorate for Patent and Trade-mark Matters, in. v. 

Copenhagen. I 

I hereby request permission to obtain two certified copies 
of patent application No. 54 in Class 80 filed by Engineer 
Erik Christian Bayer, for a Process for the Manufacture 
of Porous Building Material, laid open for inspection April 
IS, 1922, which application is identical with that fi|led on 
September 11, 1922, later issued as Patent No. 31,916. 
Copenhagen, 9th January, 1934. 

Respectfully, 

(Signed) HUjDE. 

11 Januarv 10, 1934. 

I 

In reply to your request of the 9th instant to obtain 
copies of a certain application laid open for public inspec¬ 
tion, such copies being for use in a pending lawsuit, Which 
application was withdrawn by the applicant after having 
been so laid open, you are advised that the Directorate has 
no authorization from the applicant to grant your request 
for furnishing such copies. i 

N. J. EHRENREICH-HANSEN, j 
M., | 

Director. 


Hr. Patentkonsulent C. Hude. 

K. 



10 


J. 'A. RICE ET AL. VS. E. C. BAYER ET AL. 


It is hereby attested that the attached copy of the Danish 
Patent News (Dansk Patenttidende) No. 16 of April 18, 
1922 corresponds to the “News” officially published on that 
date. 

Directorate for Patent and Trade-mark matters m. v. 
Copenhagen, January 10, 1934. 

N. J. EHRENREICH-H AN SEN, 

Director. 


12 Danish Patent News. 

Published by the Patent Commission, Copenhagen. 

28th Year. Nr. 16. 

April 18, 1922. 

The Danish Patent News is published regularly once 
a week (Monday). Subscriptions for the News are taken 
at the Patent Commission’s office, Niels Brocks Street No. 
14. Payment for the current year for the News with speci¬ 
fications and register amounts to 250 crowns, for the Times 
alone with the register but without specification 50 crowns, 
but a number of copies of the News of past issues which 
have not been subscribed for can be had at 5 crowns per 
copy for each set of five pages, insofar as the supply in¬ 
cludes copies of specifications and drawings of specific pat¬ 
ents desired. Ten copies of the specification and drawings 
of individual patents can be had for half of that price if 
the order is placed before the day week after the issue of 
the patent which is to be granted has been made known. 
It is also possible to subscribe for specifications of all pat¬ 
ents belonging to the same class. The price in such cases 
is also half of that above specified for individual specifi¬ 
cations. In the case of all above specified prices domestic 
postage is included. 

Contents: 

Information from the Patent Commission concerning: 

Patent Applications, laid open to public inspection. 

Withdrawn Applications for Patent. 

Correction of Completed Patents. 

Assigned patents. 

Changes in General Powers of Attornev. 

Patents Whose Time is Extended. 





J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


11 


Abandoned Patents. | 

Corrections. ! 

Expired Patents. 

Renewed Patents. j 

Specifications of Patents Nos. 29,467-29,508. j 

l 

Applications Laid Open for Inspection, j 

i 

Applications for Patents from the following inventors 
have been received from the specified applicants ifpon the 
stated dates. ! 

i 

#**••* I* 


Class 80. | 

54. Process for the Making of Porous Building Material: 
Engineer Erik Christian Baver of Copenhagen, N^rrevold 
Street No. 110. 12. 9. 1921. 

i 

****** V 

13 The above applications with the appertaining de¬ 
scriptions and drawings are laid open for public 
inspection at the office of the Patent Commission, Niels 
Brocks Street No. 14 for eight weeks from date, eac|h week 
day from 11 o’clock to 2 o’clock. For these eightj weeks 
anyone is free to examine these applications and to Appear 
before the Patent Commission with written or oral Opposi¬ 
tion to the grant of the proposed patents regardless of 
what the ground of the opposition may be to show t|iat. the 
patent should not be issued or that the grant of tliie pat¬ 
ents would be contrarv to established rights. 

The applications laid open on the 27 f.m. and mentioned 
in the “Statstidende” of even date will remain laid open 
for another eight weeks. 


It is hereby attested that the attached copy of the Danish 
Patent News (Dansk Patenttidende) No. 39 of September 
25, 1922 corresponds to the “News” officially published on 
that date. | 

Directorate for Patent and Trade-mark matters! m.v. 
Copenhagen, January 10, 1934. 

N. J. EHRENREICH-HANSEN, j 

Director. 



12 


J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


14 Danish Patent News. 

Published by the Patent Commission, Copenhagen. 

28th Year. No. 39. 


Sept. 25, 1922. 

(Heading same as in Paper 4 down to Table of Con¬ 
tents.) 

Contents: 

Information from the Patent Commission concerning: 
Patent Applications laid open to public inspection. 
Withdrawn Applications for Patents. 

Allowed Patents. 

Assigned Patents, and 
Abandoned Patents. 

Specifications of Patents Nos. 30,305-30,347. 

• •••••* 


Withdrawn Applications for Patents. 

September 12, 1922. 

Process for the Making of Porous Building Material: 
E. C. Bayer. Laid open for inspection 18.4.1922. (No. 54). 

It is hereby attested that the attached copy of the Danish 
Patent News (Dansk Patenttidende) No. 48 of November 
27, 1922 corresponds to the * 1 News” officially published on 
that date. 

Directorate for Patent and Trade-Mark matters m.v. 
Copenhagen, January 10, 1934. 

N. J. EHRENREICH-H AN SEN, 

Director. 

15 Danish Patent News. 

Published by the Patent Commission, Copenhagen. 

28th Year. No. 48. 


Nov. 27, 1922. 

(Heading same as in Paper 4 down to Table of Con¬ 
tents.) 


J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


13 


Contents: j 

l 

Information from the Patent Commission concerning: 

Patent Applications laid open to public inspection. 
Withdrawn Applications for Patent. 

Allowed Patents. ! 

Assigned Patents, and 

Abandoned Patents, and j 

Expired Patents. j 

Specifications of Patents Nos. 30,777-30,841. 

i 

##*#*•# 

i 

Applications Laid Open For Inspection. 

I 

i 

Applications for Patents. ! 

From the following inventors have been received from 
the specified applicants upon the stated dates. 

i 

.* * * * • * | * 

I 

Class 80. ; 

I 

I 

Process for the Making of Porous Building Material: 
Engineer Erik Christian Bayes of Copenhagen. N0rrevold 
Street No. 110. 11.9.1922. 1 

l 

* * * # * * # i 

i 

(Paragraph same as first paragraph page 2 of Pa^er 4.) 
It is hereby attested that the attached copy of the Danish 
Patent News (Dansk Patenttidende) No. 26 of June 25, 
1923 corresponds to the “News” officially published od that 
date. 

Directorate for Patent and Trade-mark matters m. v. 

I 

16 Copenhagen, January 10, 1934. 

N. J. EHRENREICH-HANSEN, 

Director . 

Danish Patent News. | 

I 

Published by the Patent Commission, Copenhagen. 

29th Year. No. 26. j 

June 25, 1923. 

(Headings, etc. same as in Paper 4 down to Table of Con¬ 
tents.) 



14 


J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


Contents: 

Information from the Patent Commission concerning: 

Patent Applications laid open to public inspection. 

Withdrawn Applications for Patent. 

Allowed Patents. 

Assigned Patents. 

Abandoned Patents. 

Specifications of Patents Nos. 31,882-31,910. 

Patents. 

For the following applicants will be completed (issued) 
under the specified numbers for the owners named. Speci¬ 
fications of these patents will be available within the next 
week. 


• • • # » * * 


June 19, 1923. 

31,916. Process for Making Porous Building Material: 
Engineer Erik Christian Bayer of Copenhagen, Xcfrrevold 
Street No. 110 filed 11.9.22-Class 80. 

17 Affidavit. 

State of New York, 

County of Neiv York, 

United States of America, ss: 

John Parry, being duly sworn deposes and says: 

1. That he is a member of the firm of Langner, Parry, 
Card & Langner of 17 John Street, New York City, and a 
member of the firm of Stevens, Langner, Parry &• Bollinson 
of 5 Quality Court, Chancery Lane, London, W. C. 2, Eng¬ 
land, both firms being International Patent and Trade 
Mark solicitors and agents. 

2. That he is a Fellow of the British Chartered Institute 
of British Patent Agents and has specialized in the solici¬ 
tation of foreign patents and trade marks for the past 
twentv-nine years. 

3. That during that period he has applied for and ob¬ 
tained numerous patents in Denmark and is fully con- 


J. A. RICE ET AL. YS. E. C. BAYER ET AL. 


15 


versant with the practice of the Patent Office in that coun¬ 
try. i 

4. That applications for patents in Denmark aftef allow¬ 
ance by the Patent Office are laid open to public inspection 
for purposes of opposition for a period of eight weeks and 
that such laying open to inspection is duly advertised and 
interested parties may, on request, obtain typewritten 
copies of the papers and prints of the drawings, if any, 
from the Patent Office during such opposition period. 

5. That an application filed in Denmark under the Inter¬ 
national Convention has to be lodged on or before 'the an¬ 
niversary of the filing date of the first application dis¬ 
closing the invention in a Country of the Union ifi order 

to sustain the claim to priority. 

IS 6 . That Article 4 of the International Convention 
covering the priority periods for Patents, models of 
utility, industrial designs, and trade marks was revised at 
The Hague, November 6th, 1925 to more clearly indicate 
that the priority terms commence to run from the (late of 
filing of the first application in a country of the Uhion. 

7. That the revision was made to prevent the practice 
of claiming Convention priority based on an application 
other than the first filed in a Convention country—a prac¬ 
tice which was peculiar to Germany. 

8. That in the Mitteilungen vom Verband Deijitscher 
Patentanwalte (Reports of the German Patent Law| Asso¬ 
ciation) for August 1933 (No. 8) page 217, there appears 
a report of a decision of the German Supreme Court bear¬ 
ing on the question of priority under Article 4 of the Inter¬ 
national Convention as amended at The Hague, in which 
decision the Court held that once a patent application was 
filed in a Country of the Union the priority date was gen¬ 
erated, and that in order to invoke priority for the inven¬ 
tion covered by such application, a Convention application 
would have to be filed in Germany on or before thO anni¬ 
versary of such first filing date, so that the practice of the 
German Patent Office will now conform with that of the 
Patent Offices of the other countries party to the Inter¬ 
national Convention in calling for the priority elain^ to be 
based on the first application filed on the inventio^ in a 
Convention Country. 

9. That under this decision of the German Supreme 
Court it was also held that abandonment of the first appli- 



16 


J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


cation and the filing of another application would not gen¬ 
erate a new priority date for the invention. 

19 10. That this German decision is the first authori¬ 
tative decision issued in a country of the Union since 

the ratification of the revised Convention and insofar as it 
calls for the'priority claim to be based on the first appli¬ 
cation filed on an invention it will render the practice uni¬ 
form in the countries of the Union. 

JOHN PARRY. 

Subscribed and sworn to before me this 24th day of 
February, 1934. 

[seal.] ; F. H. LOGAN, 

Notary Public, 
Westchester County. 

Certificate filed in New York Countv No. 663. 
Commission expires March 30, 193S. 

Affidavit. 

Commonwealth of Pennsylvania, 

County of Allegheny, ss: 

On this 24th day of February, A. D. 1934, before me, a 
Notary Public in and for the said County and State, per¬ 
sonally appeared Grant Curry, who, being by me duly 
sworn, deposes and says that he is a resident of the City 
of Pittsburgh, County of Allegheny, and State of Penn¬ 
sylvania; that he is the Secretary and Treasurer and a 
Director of The Bubblestone Company, a corporation of 
the Commonwealth of Pennsylvania; that on the 6th dav 
of January, 1934, and for sometime thereafter, he was in 
the City of Copenhagen, Denmark, and while there he dis¬ 
covered that Erik Christian Baver of that Citv had 

« * 

20 filed an Application for Letters Patent in the Danish 
Patent Office on a process for the manufacture of 

porous building materials on the 12th day of September, 
1921 and had withdrawn the same on the 12th day of Sep¬ 
tember, 1922; that on the 18th day of April, 1922* the said 
Application of said Erik Christian Bayer was laid open 
for public inspection in accordance with the Laws of Den¬ 
mark, and on said date, notice of the said public inspection 
was published in “Dansk Patenttidende” No. 16, Vol. 28, 
the official publication of the Danish Patent Office; that at 



I 

I 

J. A. RICE ET AL. VS. E. C. BAYER ET AL. ! 17 

l 

I 

the request of the affiant, Charles Hude, an Engineer and 
Patent Agent of Copenhagen who resides at Vestervold- 
gade 8G, Copenhagen, Denmark, and who is President of 
the Association of Danish Patent Agents, applied to the 
Patent Office of Denmark for two certified copies of the 
said Application of Bayer which was filed September 12, 
1921; that on the 8th day of January, 1934, the affiant ac¬ 
companied the said Charles Hude to the Danish Patent 
Office and was there introduced by the said Charles Hude 
to Mr. K. Holten, the head clerk thereof; that upon the 
request of the said Charles Hude, the said Mr. K. Holten 
and the Secretary of the Danish Patent Office, Mr. SAnder- 
sen, compared the Danish Patent Office file copy of the 
said Application of Bayer of September 12, 1921 \tith the 
Danish Patent No. 31,916 which was issued to the said 
Bayer on a later Application filed by him in the Danish 
Patent Office on the 11th day of September, 1922; that the 
said Air. Holten then turned to the said Charles Hfide and 
spoke to him in the Danish Language, whereupon tlhe said 
Charles Hude immediately turned to the affiant and stated 
in the English Language, “they say it is identical r; that 
on the 9th day of January, 1934, the affiant, accompanied 
by Harry Hude, a Patent Agent of Copenhagen, Denmark, 
and the son of the said Charles Hude, went to the 
21 Danish Patent Office for the purpose of obtaining 
the said two certified copies of Bayer’s Application 
of September 12, 1921; that the affiant and the said| Harry 
Hude were there and then informed that the Danish Patent 
Office would not issue the said ordered certified copies of 
Baver’s Application of September 12, 1921. 

GRANT CUIfRY. 

I 

Sworn to and subscribed before me this 24 day qf Feb¬ 
ruary, 1934. 

[seal.] G. A. HOPPER, 

Notary Public. 

My commission expires April 1, 1934. 

Affidavit. | 

Commonwealth of Pennsylvania, ! 

County of Allegheny , ss: 

On this 24th day of February, A. D. 1934, before me, 
a Notary Public in and for the said County and State, 

2—6285a 



IS 


J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


personally appeared Grant Curry, who, being by me duly 
sworn, deposes and says that lie is a resident of the City of 
Pittsburgh, County of Allegheny and State of Pennsvl- 
vania; that lie is the Secretary and Treasurer and a Direc¬ 
tor of The Bubblestone Company, a corporation of the 
Commonwealth of Pennsylvania; that he had no knowledge 
whatsoever prior to the 6th day of January, 1934 of the 
fact that Erik Christian Bayer filed an Application for 
Letters Patent of the Kingdom of Denmark on the process 
for the manufacture of porous building materials 
22 on the 12th day of September, 1921, or of the public 
inspection thereof in the Danish Patent Office on the 
18th day of April, 1922, or that the said Application of 
Erik Christian Bayer was withdrawn on the 12th day of 
September, 1!}22; that he could not, by the exercise of rea¬ 
sonable diligence, have discovered the same so as to make 


use thereof at the trial of the Consolidated Causes of Erik 
Christian Bayer vs. John A. Bice and The Bubblestone 
Company and Carlisle K. Boos and the United States 
Gypsum Company, and John A. Bice and The Bubblestone 
Company vs. Carlisle K. Boos and United States Gypsum 
Company and Erik Christian Bayer which were filed at 
Xos. 48,832 apd 48,833 in Equity, before the rendering of 
the Decrees in said Consolidated Causes by the Supreme 
Court of the District of Columbia; that to the best of his 
knowledge and belief, neither The Bubblestone Company 
nor John A.‘ Bice, Parties in said Consolidated Causes, 
had any knowledge whatsoever of said facts and could not, 
by the exercise of reasonable diligence, have discovered 
the same so as to make use thereof at the trial of the Con¬ 
solidated Causes. 


GRANT CUBBY. 


Sworn to and subscribed before me this 24th day of 
February, A. D. 1934. 

[seal.] G. A. HOPPER, 

Notary Public. 

23 Affidavit. 


Commonwealth of Pennsylvania, 

County of Allegheny, ss: 

On this 24th day of February, A. D. 1934, before me, a 
Notary Public in and for the said County and State, per- 



J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


19 


sonally appeared Don Rose, who, being by me duly sworn, 
deposes and says that he is a resident of the Boijougli of 
Sewickley, County of Allegheny and State of Pennsylvania; 
that his appearance has been entered as Attorneyj for the 
Parties, John A. Rice and The Bubblestone Company in the 
Consolidated Causes of Erik Christian Bayer vs. John A. 
Rice and The Bubblestone Company, Carlisle K. Roos and 
United States Gypsum Company, and John A. I^ice and 
The Bubblestone Company vs. Carlisle K. Roos and United 
States Gypsum Company, and Erik Christian Bayep, which 
Consolidated Causes were filed in the Supreme Court of the 
District of Columbia at Nos. 4S,832 and 48,833 in Equity; 
that as such, he prepared the said Consolidated Caiises for 
trial and conducted the trial thereof in the Supreme Court 
of the District of Columbia; that he had no knowledge what¬ 
soever prior to the 8th day of January, 1934 of the fact that 
Erik Christian Bayer filed an Application for Letters Pat¬ 
ent of the Kingdom of Denmark on a process for thfe manu¬ 
facture of porous building materials on the 12th day of 
September, 1921, or of the public inspection thereof in the 
Danish Patent Office on April 18, 1922, or that the s^id Ap¬ 
plication of Erik Christian Bayer was withdrawn fi*om the 
Danish Patent Office on the 12th day of Septembe^, 1922; 
that he could not by the exercise of reasonable diligence 
have discovered the same so as to make use [thereof 
24 at the trial of the said Consolidated Causes. 

DON ROSE. 

I 

Sworn to and subscribed before me this 24th day bf Feb- 
ruary, A. D. 1934. 

[seal.] G. A. HOPPER. 

Affidavit. ° j 

City of Washington, 

District of Columbia, ss: I 

I, H. H. Byrne, being duly sworn, depose and sav: 

That I am a resident of Washington, D. C., engaged in 
the practice of patent and trade-mark law, and that in the 
United States patent Interference proceeding, Rice vs. 
Bayer, vs. Roos, Xo. 50,974, I represented the party Rice. 

That I accepted in good faith and as true the statements 
appearing in the Oath accompanying the application of said 
Erik Christian Bayer involved in said proceeding, said 
statement alleging that 



20 


J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


“no application for patent on said improvement 
has been filed by himself or his representatives or assigns 
in any country foreign to the United States, except as fol¬ 
lows: in Denmark the 11th of September, 1922, patent No. 
31,916,” * * * 

That said interference proceeding has matured into Con¬ 
solidated Causes of Erik Christian Bayer vs. John A. Rice 
and The Bubblestone Company, Carlisle K. Roos and 
United States Gypsum Company, and John A. Rice and The 
Bubblestone Company vs. Carlisle K. Roos and 

25 United States Gypsum Company, and Erik Christian 
Bayer, which Consolidated Causes were filed in the 

Supreme Court of the District of Columbia at Nos. 48,832 
and 48,833 in Equity; and that I have assisted in the prepa¬ 
ration and trial of said Consolidated Causes. 

That I had no knowledge whatever prior to the 26th day 
of February, 1934, of the fact that said Erik Christian 
Bayer filed an Application for Letters Patent of the King¬ 
dom of Denrpark on a process for the manufacture of 
porous building materials on the 12th day of September, 
1921, or of the public inspection thereof in the Danish Pat¬ 
ent Office on April 18, 1922, or that the said Application of 
Erik Christian Bayer was withdrawn from the Danish Pat¬ 
ent Office on the 12th day of September, 1922; or that said 
earlier and withdrawn application is identical in contents 
with the second application of said Erik Christian Bayer, 
and that I could not by the exercise of reasonable diligence 
have discovered the same so as to make use thereof in the 
proceedings before the United States Patent Office or at 
the trial of the said Consolidated Causes. 

H. H. BYRNE. 

Sworn to and subscribed before me this 27th day of Feb- 
ruarv, A. D. 1934. 

[seal.] CATHERINE WILTON, 

Notary Public , D. C. 

26 Motion to Compel Production of Document. 

Filed March 29, 1934. 

*••#*** 

To the Honorable the Judges of said Court: 

Now come John A. Rice and The Bubblestone Company, 
Plaintiffs in the above entitled Cause filed at No. 48,833 in 



J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


21 


Equity, and Defendants in the above entitled Cause! filed at 
No. 48,832 in Equity, by Edward E. Reinhold and H. H. 
Byrne, their Attorneys, and represent to this Honorable 
Court as follows: 

i 

1. That on or about the 19th day of September, 1928, your 

Petitioners tiled their Bill of Complaint against Carlisle K. 
Roos, United States Gypsum Company, and Erik Christian 
Bayer, in this Court at No. 48,833 in Equity, under and in 
pursuance of Section 4915 of the Revised Statutes of the 
United States, for the purpose of obtaining a patent, and 
on or about the 8th day of November, 1929, your said Peti¬ 
tioners filed an amendment to their said Bill of Conlplaint; 
and | 

2. That on or about the said 19th day of September*, 1928, 

Erik Christian Bayer filed his Bill of Complaint against 
John A. Rice, The Bubblestone Company, Carlisle JKf. Roos, 
and United States Gypsum Company, in this Court at No. 
48,832, in Equity, which Bill of Complaint was likewise filed 
under and in pursuance of Section 4915 of the Revised 
Statutes of the United States, for the purpose of obtaining 
a patent; and j 

3. That each of the Defendants above set forth, having 
been served with process of subpoena, duly appearbd and 
filed an Answer to the said Bills of Complaint and tjie said 
Amendments thereto; and 

4. That on or about the 19th day of December, 
27 1929, the Attorneys for all the Parties in the above 

mentioned Causes, entered into a stipulation con¬ 
solidating the said Causes for trial, and the said stipulation 
was duly filed in each of said Causes; and 

5. That thereafter, the said Consolidated Cause$ were 
tried before this Honorable Court sitting in Equity, £nd on 
or about the 6th day of March, 1933, a Final Decree was 
rendered in each of the above Consolidated Causes py this 
Court, dismissing each of the said Bills of ComplainlJ which 
were tiled at Nos. 48,832 in Equity and 48,833 in Equity, 
and directing the Commissioner of Patents to issue Letters 
Patent on the process in issue to the Party, Carlisle K. 
Roos; and 

6. That on or about the 27th day of March, 193^, your 
Petitioners and the said Erik Christian Bayer, dul[y per¬ 
fected their respective Appeals from the said Decrees of 
this Honorable Court to the Court of Appeals of tlje Dis- 



22 


J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


trict of Colombia, and the Consolidated Record has been 
filed in that Court but has not as yet been printed; and 

7. That the said Appeals of your Petitioners and the 
said Erik Christian Bayer are now pending in the Court of 
Appeals of the District of Columbia, but that Honorable 
Court has neither considered nor issued mandates therein, 
nor has it in any manner whatsoever determined the same; 
and 


8. That since the time of the rendering of said Decrees 
by this Honorable Court, and on or about the 6th dav of 
January, 1934, vour Petitioners have discovered new and 
relevant evidence of importance in the said Consolidated 
Causes in Equity, and particularly that the Party, Erik 
Christian Bayer, filed an application for Letters Patent, 
upon the process in issue in said Consolidated Causes, in 
the Patent Office of the Kingdom of Denmark on the 
28 12th dhy of September, 1921, and that the contents 
of said application are identical with the contents 
of the application filed by the said Erik Christian Bayer in 
the Patent Office of the Kingdom of Denmark on the 11th 
day of September, 1922; that the said application of Sep¬ 
tember 12, 1921 was laid open for public inspection in pur¬ 
suance of the Laws of the Kingdom of Denmark on the 18th 
day of April, 1922, it having been at that time the practice 
of the Danish Patent Office to issue typewritten copies 
thereof upon request, and notice of said public inspection 
having been published in Dansk Patenttidende, Volume 28, 
Number 16: that said application of September 12, 1921 was 
withdrawn from the Patent Office of the Kingdom of Den¬ 


mark by the said Erik Christian Bayer on the 12th day of 

September, 1922; that the said Party, Erik Christian 

Baver, falselv and fraudulently concealed the facts relating 

to his said application which was filed in the Patent Office 

of the Kingdom of Denmark on the 12th day of September, 

1921, and in his Oath, which is attached to his application 

for Letters Patent on the process in issue which was filed in 

the Patent Office of the United States on the 8th dav of 

* 

September, 1923, the said Party, Erik Christian Bayer, 
falsely swore that “no application for patent on said im¬ 
provement has been filed by himself or his representatives 
or assigns in any country foreign to the United States, ex¬ 
cept as follows: in Denmark the 11th of September, 1922, 



J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


23 


patent Xo. 31,916, ” the whole of which Oath read£ as fol¬ 
lows : | 

“Kingdom of Denmark, 

7 ! 

City of Copenhagen, 

American Consulate General, ss: 

“Erik Christian Bayer, the above-named petitioner, be¬ 
ing sworn (or affirmed), deposes and says that he is a citi¬ 
zen of the Kingdom of Denmark and resident of Xo. 13 
Xordre Frihavnsgade, Copenhagen, Denmark; that 
29 he verily believes himself to be the original, fjrst and 
sole inventor of the improvement in method of manu¬ 
facturing building materials described and claimed in the 
annexed specification; that he does not know and does not 
believe that the same was ever known or used befjore his 
invention or discovery thereof or patented or described in 
any printed publication in any country before his indention 
or discovery thereof, or more than two years prior! to this 
application, or in public use or on sale in the United States 
for more than two years prior to this application; that said 
invention has not been patented in any country foreign to 
the United States on an application filed by himself or his 
legal representatives or assigns more than twelve months 
prior to this application; and that no application for| patent 
on said improvement has been filed by himself or liis rep¬ 
resentatives or assigns in any country foreign to the United 
States, except as follows: in Denmark the lltli September 
1922, patent No. 31916. 

ERIK CHRISTIAN BAYER. 

I 

“Sworn and subscribed to before me this 27th day of Au¬ 
gust, 1923. 

[seal.] E. GIESSING, j 

Vice-Consul of the United States of 

America, at Copenhagen, Denmark. 

Foreign Fee Stamp. 

#9784.” | 

and that the substance of the said newly discovered and 
relevant evidence of importance, which is of such a hature 
as to justify a review and reversal of the said Decrees 
which have been entered in the above Consolidated Causes, 
is set forth in the Affidavits of Charles Hude, of (popen- 



24 


J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


hagen, Denmark, Grant Curry of Pittsburgh, Pennsylvania, 
and John Parry, Esq. of Xew York City, copies of which 


Affidavits are attached to the Petition for Leave to File a 
Bill of Review, which Petition has been filed by the said 
John A. Rice and The Bubblestone Company in this Honor¬ 
able Court, and is of record in the said Consolidated 
Causes in Equity, reference to which Affidavits is hereby 
made with the same force and effect as though the same 
were hereto attached and made a part of this Motion; and 
9. That the said newly discovered and relevant evi- 
30 dence of importance in the above Consolidated 
Causes in Equity has the effect in law of depriving 
the said Partv, Erik Christian Baver, from anv benefits 
whatsoever under the International Convention, and so pre¬ 
vents the said Party, Erik Christian Bayer, from claiming 
a priority date earlier than the 8th day of September, 1923, 
the date of the filing of his United States Application for 
Letters Patent on the process in issue, and prevents the 
United States Gypsum Company from acquiring any rights 
of priority in the process in issue from the contract entered 
into by and between the said United States Gypsum Com¬ 
pany and Christiania & Nielsen, Bayer's assignee, of date 
September 23, 1926; and 


10. That the said newlv discovered and relevant evidence 

* 

of importance in the above Consolidated Causes in Equity 
has the further effect in law of creating and setting up a 
statutorv bar to the issuance of Letters Patent of the 
United States to the said Parties, Carlisle K. Roos and the 
United States'Gypsum Company under Section 4886 of the 
Revised Statutes of the United States, and, therefore, has 
the effect of requiring a review, reversal and setting aside 
of the said Decrees rendered and entered in the above 
Consolidated Causes in Equity by this Honorable Court; 


and 

11. That said newly discovered and relevant evidence 
of importance! in the above Consolidated Causes in Equity 
was not known to your Petitioners, and could not, by the 
exercise of reasonable diligence, have been discovered bv 
them so as to make use thereof at the trial of the said Con¬ 
solidated Causes in Equity, before the time of the render¬ 
ing of the saidi Decrees therein by this Honorable Court, all 
of which more fully appears from the affidavits of 
31 Grant Curry, Esq. of the City of Pittsburgh, H. H. 
Byrne, £]sq. of the City of Washington, D. C., and 



J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


25 


Don Rose, Esq. of the City of Pittsburgh, copies of H which 
Affidavits are attached to the said Petition for Leave to 
File a Bill of Review, which has been filed and is of record 
in the said Consolidated Causes in Equity, reference to 
which Affidavits is hereby made with the same foilce and 
effect as though the same were hereto attached and made 
a part of this Motion; and 

12. That on or about the 28th day of February, 1934, your 
Petitioners filed their Petition for Leave to File a Bill 
of Review in this Honorable Court, in which Petition they 
set forth the said newly discovered and relevant etidence 
of importance and attach thereto certain Affidavits In sup¬ 
port thereof and therein pray leave to file their Bill; of Re¬ 
view against Carlisle K. Roos, United States Gypsuiji Com¬ 
pany, and Erik Christian Bayer in this Court, to ipermit 
the introduction of the said newly discovered and relevant 

* I 

evidence of importance into the Record of the said Consoli¬ 
dated Causes in Equity, and to review, reverse and set aside 
said Decrees entered in the said Consolidated Capses in 
Equity; which Petition for Leave to File a Bill of Review 
is now pending before this Honorable Court; and 

13. That the Director of Patents of the Kingdom of Den¬ 
mark has refused to issue a copy of the said Application 
for Letters Patent of Denmark on a Process for the Manu¬ 
facture of Porous Building Material, which Application was 
filed by the said Erik Christian Bayer on the 12th day of 
September, 1921, was laid open for public inspection on the 
18th day of April, 1922, and was withdrawn on t^ie 12th 
day of September, 1922, for the reason that the said Erik 
Christian Bayer has given no authorization to t^ie said 
Director of Patents to issue a copy of the same, all of which 

more fully appears from the letter of the said Direc- 
32 tor of Patents to C. Hude of date January 10, 1934, 

a copy of which letter is attached to the said Peti¬ 
tion for Leave to File a Bill of Review which has been filed 
and is of record in the said Consolidated Causes in Equity, 
reference to which letter is hereby made with the sanle force 
and effect as though the same were hereto attached and 
made part of this Motion; and 

14. That the said Application for Letters Patent of the 
Kingdom of Denmark on a Process for the Mandfacture 
of Porous Building Material, which was filed by the said 
Erik Christian Bayer on the 12th day of Septembe^r, 1921, 
contains evidence which is of vital importance and material- 



26 


J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


ity in the said Consolidated Causes in Equity as set forth 
in paragraphs 9 and 10 hereof; and 

15. That the said Application for Letters Patent of the 
Kingdom of Denmark on a Process for the Manufacture of 
Porous Building —, which was tiled by the said Erik Chris¬ 
tian Bayer on the 12th day of September, 1921, is in the 
possession, custody and control of the said Erik Christian 
Bayer as shown by the certified copies of “Dansk Patent- 
tidende” of date April 18, 1922 and September 25, 1922, 
which certified copies are attached to the said Petition for 
Leave to File a Bill of Review which has been filed in this 
Honorable Court and is of record in the said Consolidated 
Causes in Equity, reference to which certified copies is 
herebv made with the same force and effect as though the 
same were hereto attached and made part of this Motion. 

'Wherefore,wour Petitioners respectfully move this Court 
to issue an Order directed to the Partv Erik Christian 
Bayer, ordering him either to produce in this Court a copy 
of his Application for Letters Patent of Denmark on a 
Process for the Manufacture of Porous Building Ma- 
33 terial which Application was filed on September 12, 
1921, laid open for public inspection on April 18, 
1922 and withdrawn on September 12, 1922, duly certified 
bv the Danish Patent Office, or give his authorization to 

•> ' V ' 

the Director of Patents of Denmark to issue a certified copy 
thereof to your Petitioners, John A. Rice and The Bubble- 
stone Company. 

Respectfully submitted, 

EDW. E. REINHOLD, 

H. H. BYRNE, 

Attorneys for John A. Rice <£■ Bubblestone Co. 

Dated March 29, 1934. 

Service of a copy of the within motion to compel produc¬ 
tion of document accepted this 29th day of March, 1934. 

J. T. NEWTON, 

i Attorney for Erik Christian Bayer. 
JOHN W. GLIDER, 

Attorney for Carlisle K. Boos 
and United States Gypsum Company. 



J. A. RICE ET AL. VS. E. C. BAYER EX AL. 


27 


Affidavit in Support of Motion to Compel Production of 
Document and Petition for Leave to File a\ Bill of 
Review. 


Filed April 16,1934. 


To the Honorable the Judges of said Court: 

Now come John A. Rice and The Bubblestone Company, 
Plaintiffs in the above entitled cause tiled at No. 48,833 in 
Equity, and Defendants in the above entitled cajise tiled 
at No. 48,832 in Equity, by Edward E. Hein hold and 
34 II. H. Byrne, their Attorneys, and tile the following 
Affidavit of Grant Curry, Esq. of the City i)f Pitts¬ 
burgh, Pennsylvania, in further support of their Motion 
to Compel Production of Document and Petition for Leave 
to File a Bill of Review, both of which have been hereto¬ 
fore filed and are of record in the above entitled Consoli¬ 
dated Causes in Equity, reference to which Motion jto Com¬ 
pel Production of Document and Petition for Leave to 
File a Bill of Review and the supporting affidavits attached 
thereto, is hereby made with the same force and <Mfect as 
though the same were hereto attached and made part of 
this Affidavit: j 

Commonwealth of Pennsylvania, 

County of Allegheny, ss: 


On this 14th day of April, A. D. 1934, befor^ me, a 
Notary Public in and for the said County and St^te, per¬ 
sonally appeared Grant Curry, who, being by me duly 
sworn, deposes and says that he is a resident of the City 
of Pittsburgh, County of Allegheny and State of Pennsyl¬ 


vania ; that he is the Secretary and Treasurer and § Direc¬ 
tor of The Bubblestone Company, a corporation! of the 
Commonwealth of Pennsylvania; that on the 24th day of 
February, 1934, he made two affidavits relating to t|he said 
Petition for Leave to File a Bill of Review and [Motion 
to Compel Production of Document, copies of which affi¬ 
davits are attached to the said Petition for Leave to File 
a Bill of Review and made part thereof, and reference to 
which affidavits is hereby made with the same Wee and 
effect as though the same were hereto attached anjl made 
part of this Affidavit; that on the 10th day of January, 



28 


J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


1934 at about 3:00 o’clock P. M., H. Kaarsberg who is 
Foreign Manager of the Cellular Concrete Department of 
the Partnership of Christiani and Nielsen, Bayer's 

35 Assignee, and Manager of their experimental labo¬ 
ratory regarding cellular concrete, Charles Hude, 

Patent Agent of Copenhagen, Denmark, Harry Hude, Pat¬ 
ent Agent of Copenhagen, Denmark, and the affiant, met in 
the office of the said Charles Hude at Vestervold 86, V. 
Copenhagen, i Denmark; that at said meeting and in the 
presence of Charles Hude, Harry Hude and the affiant, 
the said H. Kaarsberg made the following statement, which 
statement was taken down in shorthand and typewritten 
by the said Charles Hude’s stenographer and read and 
approved by the said H. Kaarsberg, Charles Iiudc, Harry 
Hude and the affiant as being a correct recordation of the 

said statement made bv the said H. Kaarsberg: 

• * 

4 ‘It is known that Bayer originally filed a Danish patent 
application which he later on withdrew and subsequently 
filed a new Danish application. This fact has been dis¬ 
cussed with various patent experts of which some hold that 
if this be kno>vn to the American Courts Bayer will be cer¬ 
tain to eliminate the other inventors in the interference case 
and get his U. S. A. Patent. Other experts are of the 
opinion that if this fact be disclosed Rice will be able to 
eliminate as well Roos as Bayer and get his patent whereas 
a third opinion is that if the fact referred to be disclosed 
none of the three inventors will be able to get the patent. 

* * In the present interference there is the possi- 

bilitv as alreadv mentioned that if the fact of Baver’s two 
applications be known no patent will be granted at all, 

# # * 9 7 

That Erik V. Meyer, a resident of Copenhagen, Denmark, 
testified in this Court as a witness called on behalf of the 
party Bayer, inter alia, as recorded on page 744 of the 
Court Record in the present Interference Proceeding, that 
he was a Civil Engineer working for the Firm of Christiani 
and Nielsen in Copenhagen whose principal business was 
the making of reinforced concrete, contracting work and 
cell concrete, that in the year 1923 Mr. Bayer and his friends 
showed them some samples and told them how to make 
cell concrete by mixing the foam with mortar; that 

36 on the 8th day of January, 1934, the said Erik V. 
Meyer in the presence of Charles Hude and the af- 



J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


29 


i 
i 

fiant, in the City of Copenhagen, Denmark, expressed sur¬ 
prise when he was told by the said Charles Hude and the 
affiant that they had obtained information regarding Bay¬ 
er’s first Danish Application, and the said Erik V. Meyer 
admitted in the presence of the said Charles Hiide and 
the affiant that Bayer’s position because of the discovery 
of the filing of Bayer’s first Danish Application was greatly 
endangered; that at this time and at this meeting, [the said 
Erik V. Meyer in the presence of the said Charles Hude 
and the affiant further admitted that he was aware of 
the filing of Bayer’s first Danish Application at the time 
of the taking of his said testimony in this Court; [that on 
the 8th day of January, 1934 at about 4:00 o’cloclf P. M., 
the said Erik V. Meyer, the said H. Kaarsberg, the said 
Charles Hude, one Mr. Nielsen of Christiani and Nielsen, 
one Mr. Cohn of the firm of Magnus, Jensens Eftlf., Pat¬ 
ent Agents of Copenhagen, Denmark who represent the 
said partnership of Christiani and Nielsen ii 
ters, and the affiant met in the principal office 
and Nielsen in Copenhagen, Denmark; that during this 
meeting, and in the presence of all of the aforementioned 
parties, the said Erik V. Meyer admitted that, during the 
trial of the present proceeding in this Court, he knew that 
Bayer had first, filed an Application in the Danish Patent 
Office on the process in issue on the 12th day of September, 
1921, and that a second Application was filed theiieon on 
the 12th day of September, 1922; that the said Erik V. 
Meyer further stated that James T. Newton of Washing¬ 
ton, D. C. Counsel for Bayer, knew of the filing of Bayer’s 
first Danish Application at the time of the trial of this 
proceeding in this Court and that the said Japes T. 
37 Newton was unable to give the said Christiani and 
Nielsen a positive opinion on the question of Whether 
or not the fact of the filing of Bayer’s first Danish Appli¬ 
cation would invalidate Bayer’s subsequently filed United 
States Application on the process in issue; that at tile said 
meeting in the principal office of Christiani and Nielsen in 
Copenhagen, Denmark, the said Erik V. Meyer, tip said 
H. Kaarsberg, the said Cohn and the said Nielsen expressed 
their belief in the opinion that the introduction of evidence 
regarding the filing of Bayer’s first Danish Application on 
the process in issue would prevent the issuance of Letters 
Patent of the United States to the parties Carlisle K: Roos 
and the United States Gypsum Company, and further stated 


patent mat- 
of Christiani 



30 


J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


that, because of the uncertainty regarding the legal effect 
of the introduction of testimony regarding the filiiii>* of 
Bayer's first Danish Application on the case of Bayer, they, 
therefore, refrained from disclosing the same to this Court; 
that on the 15th day of April, 1934, the affiant, through Rose 
& Eichenauer of Pittsburgh, Pa., Attorneys for the parties 
John A. Rice and The Bubblestone Company, whose cable 
address is “Donrose, Pittsburgh, Pa.” received the follow¬ 
ing cable from the said Charles Hude, Patent Agent of 
Copenhagen, Denmark, whose cable address is “Protec¬ 
tion, Copenhagen, Denmark”: 

“Kaarsberg of Christiani and Nielsen and Officials of 
Patent Office admitted before Curry Harrv Hude and me 
Mayers first Danish Application disclosed same invention 
as his second Danish Application of same title stop Eric 
V. Meyer also admitted this stop Am forwarding affidavits 
of mvself and Harrv Hude” 


a copy of which cable is hereto attached and made part 
hereof; that as set forth in the Affidavits of the affiant of 
date February 24, 1934, and Charles Hude of date January 
10, 1934, copies of which Affidavits, as above stated, 
38 are attached to the said Motion to Compel Produc¬ 
tion of Document and Petition for Leave to File a 
Bill of Review, the Danish Patent Office refused the appli¬ 
cation of the affiant and the said Charles Hude for two 
certified copies of the Application filed by Bayer in the 
Danish Patent Office on the 12th day of September, 1921 
for the reason that the party Bayer refused to give his con¬ 
sent to the issuance of the same, and upon the request of 
the affiant, the said Charles Hude duly prosecuted an ap¬ 
peal from the said refusal of the Danish Patent Office to 
the Ministry for Commerce and Industry of the Kingdom 
of Denmark, land on the 19th day of March, 1934 the said 
Ministry for Commerce and Industry likewise refused to 
order the issuance of the said certified copies of Bayer’s 
first Danish Application because of the refusal of the party 
Bayer to giye his consent to the issuance thereof; that 
a copy of the decision of the said Ministry for Commerce 
and Industry together with a translation thereof is at¬ 
tached hereto and made part hereof. 


GRANT CURRY. 



J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


31 


Sworn to and subscribed before me this 14th day of 
April, A. D. 1934. 

[seal. ] G. A. HOPPER, 

Notary Public. 

i 

My commission expires April 1, 1935. 

i 

i 

R espect fully submit ted, 

EDW. E. REINHOLD, j 
H. H. BYRNE, 

Attorneys for John A. Bice ana 

The Bubblestone Company. 
April 16, 1934. j 

j 

39 Service of a copy of the foregoing Affidavit in Sup¬ 
port of Motion to Compel Production of Document 
and Petition for Leave to File a Bill of Review acknowl¬ 
edged this 16th day of April, 1934. I 

JOHN W. GUIDER, 

Attorney for Carlisle K. Roos and\ 

United States Gypsum Company. 

J. T. NEWTON, j 

Attorney for Erik Christian Bayer. 

Signed under protest on account of shortness of notice. 

Of Counsel: ! 

ROSE & EICHENAUER, 

707 Oliver Bldg., I 

Pittsburgh, Pa. 

BYRNES, STEBBINS & BLENKO, 

Farmers Bank Bldg., 

Pittsburgh, Pa. 

EDWARD E. REINHOLD, 

707 Oliver Building, 

Pittsburgh, Pa., I 

H. H. BYRNE, | 

Washington Loan & Trust Bldg., 

Washington, D. C., 

Attorneys for John A. Rice and The 
Bubblestone Company. 



32 


J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


Postal Telegraph. 

The International System. 

•» 

Telegrams, Cablegrams, Radiograms. 

Commercial Cables. Mackay Radio. All America Cables. 

1934 Apr 14 PM 2 56. 

NA367 52 Cable-N Kobenhavn 14. 

NLt Donrose— 

189 

Pittsburgh Penn— 

Kaarsberg of Christiani and Nielsen and officials of Patent 

Office admitted before Currv Harrv Hude and me Bavers 

• % » 

first Danish application disclosed same invention as his 

second Danish application of same title stop Eric V Meyer 

also admitted this stop am forwarding affidavits of 

40 mvself and Harrv Hude—Protection. 

•> » 

Telephone Your Telegrams to Postal Telegraph. 
Ministeriet for Handel og Industri (Handelsministeriet). 

9047. 

Kbbenhavn, den 19. Marts 1934. 
Journal Nr. 5045/21. 

(Bedes anfdrt ved Besvarelser.) 

Bilag. 

I or hertil indgivet Andragende af 24. Januar d. A. liar 
De anholdt om, at det maa blive paalagt Direktbren for 
Patent og Varemaerkevaesenet m. v. at udfaerdige en 
bekraeftet Afskrift af en af Ingenidr Erik Baver, her af 
Staden, den 12. September 1921 indleveret den 18. April 
1922 fremlagt og den 11. September s. A. tilbagetaget 
Ansogning om Patent paa en Fremgangasmaade til Frem- 
stilling af pordse Bygningsmaterialer. 

Det fremagaar af Sagen, at Direktbren for Patent og 
Varemaerkevaesenet m. v. bar meddelt Dem, at den dnskede 
Afskrift ikke vil blive udfaeridiget unden Ansdgerens 


J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


33 


i 

Samtykke, og at saadant Samtykke er blevet Dem ijaegtet. 

I denne Anledning skal man efter stedfundeni Brev- 
veksling med Direktpren for Patent og Varemaerkevgesenet 
m. v. meddele, at Ministeriet for Handel og Industjri med 
Direktdren er enigt i, at den ommeldte Afskrift i^ke vil 
kunne udfaerdiges. 

p. m. v.l 

E. B., 

U. fergexsen. 

Hr. Patentkonsulent Chas Hude. 

i 

41 Trayislation. 

The Ministry for Commerce and Industry (The Tirade 

Ministry). 

No. 5045/21. 


Copenhagen, March 19th, jl934. 

By an application filed January 24th you have requested 
the Ministry to instruct the Patent Office to issue a certified 
copy of a patent application filed by Engineer Eril| Bayer 
of this city on September 12th, 1921 and published ojn April 
18th 1922 and subsequently withdrawn on September 11th 
1922 relating to manufacture of porous building materials. 

It appears that the Director of the Patent Office has in¬ 
formed you that the said copy could only be issued with 
the consent of the applicant, and such consent has been re¬ 
fused. 

After having communicated with the Director of the Pat¬ 
ent Office the Board of Trade beg to inform vou that it 
shares the opinion of the Director in refusing to h^ind you 
the said copy. 

Order . 


Filed May 17,1934. 


The Petition of John A. Rice and the Bubblestohe Com¬ 
pany for leave to file a bill of review of the final decrees 
of this Court entered in these consolidated causes on March 
6,1933, came on for hearing on the 16th day of Marc}h, 1934, 
together with certain sworn affidavits and verified exhibits 
filed in support of said petition, and the said petitioners, 

3—6285a 



34 


J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


John A. Rice and the Bubblestone Company, being 

42 represented in court by their attorneys, Rose and 
Eichenauer bv Edward E. Reinhold and H. H. Bvrne, 

and the respondents, Carlisle K. Roos and the United States 
Gypsum Company, being represented by their attorneys, 
Jones, Addington, Ames & Seibold by George W. Hansen, 
and the respondent, Erik Christian Bayer, being repre¬ 
sented by his attorney, James T. Newton; and the Court 
having considered the said petition, affidavits and other 
moving papers and having heard the oral arguments of 
the parties by their attorneys, and having also considered 
the written briefs submitted by the various parties, and the 
Court now being fully advised in the premises, 

It is, therefore, ordered, adjudged and decreed that the 
petition of John A. Rice and the Bubblestone Company for 
leave to file a bill of review of the decrees entered in these 
consolidated cases on March 6,1933, be and the same hereby 
is denied. 

Enter: 

F. DICKINSON LETTS, 

Judge of the Supreme Court of 

the District of Columbia. 

Dated May 17th, 1934. 

Approved as to form. 

J. T. NEWTON, 

Attorney for Bayer. 

H. H. BYRNE, 

Attorney for Rice and the 

Bubblestone Company. 
GEORGE W. HANSEN, 

Attorney for Roos and the 

United States Gypsum Co. 

Exceptions by the parties John A. Rice and The Bubble¬ 
stone Co. to the above Order allowed and noted in open 
Court this 17th dav of Mav, 1934. 

‘ F. DICKINSON LETTS, 

Justice. 

43 Order. 

Filed May 17,1934. 

• •••#•• 

The Petition of John A. Rice and The Bubblestone Com¬ 
pany for leave to file a bill of review of the decrees entered 
in these consolidated causes on March 6, 1933, having 



J. A. RICE ET AL. VS. E. C. BAYER ET AL. 35 

j 

heretofore been filed herein, the Petitioners, John A. Rice 
and The Rubblestone Company, by their attorneysj Rose & 
Eichenauer by Edward E. Reinhold and H. H. By^ne, filed 
their motion supported by affidavit for an order tb compel 
the production by the respondent, Erik Christian Bayer, 
of a certain document otherwise identified in sah} motion 
as a copy of the said Bayer’s application for Letters Patent 
of Denmark on a process for the manufacture of| porous 
building material, which application was alleged to have 
been filed in the Danish Patent Office on September 12, 
1921, alleged to have been laid open for public inspection 
in the Danish Patent Office on April 18, 1922, and alleged 
to have been withdrawn on September 12, 1922, said motion 
in the alternative seeking an order to require t^he said 
Barer to give his authoritv to the Director of Patents of 
Denmark to issue a certified copy of said document to the 
petitioners, John A. Rice and The Bubblestone Company, 
and the said motion having come on regularly for hearing 
on the 18th day of April, 1934, the petitioners bein^ repre¬ 
sented as aforesaid, the respondents, Carlisle K. Rpos and 
the United States Gypsum Company being represented by 
their attorneys, Jones, Addington, Ames & Seibold by 
George W. Hansen, and the respondent, Erik Christian 
Bayer being represented by his attorney James T. Newton, 
and the Court having heard the oral arguments of the 
parties and having considered the moving papers and 
44 the written briefs submitted by the parties, ajnd now 
being fully advised in the premises, 

It is hereby ordered, adjudged and decreed that the 
motion of the petitioners, as aforesaid, be and the same 
hereby is denied. 

Enter: 

F. DICKINSON LETTS, 

Judge of the Supreme Court of 

the District- of Columbia. 

Dated: May 17th, 1934. j 

Approved as to form. 

J. T. NEWTON, j 

Attorney for Bayer. 

H. H. BYRNE, j 

Attorney for Bice and the 

Bubblestone Company. 
GEORGE W. HANSEN, 

Attorney for Roos and the 

4—6285a United States T ypsum Company. 



36 


J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


Exceptions by the parties Bubblestone Co. & Rice to the 
above Order allowed and noted in open Court this 17th day 
of May, 1934. 

F. DICKINSON LETTS, 

J u slice. 


Memorandum. 

June 9, 1934.—Orders noting appeal and for issuance of 
citations, filed. 

45 Order Allowing Appeal and Fixing Appeal Under¬ 
taking. 

Filed June 9, 1934. 


Equity No. 48832. 

John A. Rice and The Bubblestone Company having in 
open Court this day noted an appeal to the Court of Appeals 
of the District of Columbia, it is thereupon by the Court 
this 9th day of June, A. D. 1934, adjudged, ordered and 
decreed that their said appeal be, and the same hereby is, 
allowed, and that their cost undertaking on said appeal be, 
and the same hereby is, fixed in the maximum amount of 
One Hundred Dollars ($100.00).* 

! JESSE C. ADKINS, 

J ustice. 

Order Allowing Appeal and Fixing Appeal Undertaking. 

Filed June 9, 1934. 

• •••••• 

Equity No. 48833. 

John A. Rice and The Bubblestone Company having in 
open Court this day noted an appeal to the Court of Ap¬ 
peals of the District of Columbia, it is thereupon by the 
Court this 9th day of June, A. D. 1934, adjudged, ordered 
and decreed that their said appeal be, and the same hereby 
is, allowed, and that their cost undertaking on said appeal 



J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


37 


be, and the same hereby is, fixed in the maximum ampunt of 
One Hundred Dollars ($100.00). 

JESSE C. ADKINS) 

J notice. 


46 


Citation. 

Issued June 9, 1934. 


Equity No. 48832. 

The President of the United States of America to Erik 

Christian Baver, Carlisle K. Roos and United States 

v 7 

Gypsum Company, Greeting: 

You are hereby cited and admonished to be and Appear 
at a Court of Appeals of the District of Columbia, uj>on the 
docketing the cause therein, under and as directed by the 
Rules of said Court, pursuant to an Appeal noted in the 
Supreme Court of the District of Columbia, on the 9th day 
of June, 1934, wherein John A. Rice et al., Appellant, and 
you are Appellees, to show cause, if any there be, why the 
Judgment—Decree—rendered against the said Appellant, 
should not be corrected, and why speedy justice should not 
be done to the parties in that behalf. 

Witness the Honorable Alfred A. Wheat, Chief [Justice 
of the Supreme Court of the District of Columbia, tihis 9th 
day of June, in the year of our Lord one thousand nijie hun¬ 
dred and thirty four. 

[seal.] FRANK E. CUNNINGHAM) 

Qlerk, 

By CHAS. B. COFLIN, 

Assistant Clerk. 

Service of the above Citation accepted this 9th day of 
June, 1934. j 

JOHN W. GUIDERl, 

Attorney for Appellee, Roos & U. S. Gypsum Co. 

J. T. NEWTON, | 
Attorney for Appellee Btyyer. 



38 


J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


47 Citation. 

Issued June 9, 1934. 

m • • • * « « 


Equity No. 48833. 

The President of the United States of America to Carlisle 
K. Roos, United States Gypsum Company and Erik 
Christian Bayer, Greeting: 

You are hereby cited and admonished to be and appear 
at a Court of Appeals of the District of Columbia, upon the 
docketing the cause therein, under and as directed bv the 
Rules of said Court, pursuant to an Appeal noted in the 
Supreme Court of the District of Columbia, on the 9th day 
of June, 1934, wherein John A. Rice et al. Appellant, and 
you are Appellees, to show cause, if any there be, why the 
Judgment—Decree—rendered against the said Appellant, 
should not be corrected, and why speedy justice should not 
be done to the parties in that behalf. 

Witness the Honorable Alfred A. Wheat, Chief Justice 
of the Supreme Court of the District of Columbia, this 9th 
day of June, in the year of our Lord one thousand nine 
hundred and thirtv-four. 

[seal.] ‘ FRANK E. CUNNINGHAM, 

Clerk , 

By CHAS. B. COFLIN, 

Assistant Clerk. 


Service of the above Citation accepted this 9th day of 
June, 1934. 


JOHN W. GUIDER, 

Attorney for Appellee , Roos <£ U. S. Gypsum Co. 

J. T. NEWTON, 
Attorney for Appellee Bayer. 


48 


Memorandum. 


Equity Nos. 48832 & 48833. 

June 9, 1934.—Undertakings on appeal by Rice et al., 
$100, approved and filed. 



J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


39 


Assignments of Error . 

Filed August 9, 1934. j 

i 

i 

• * • • • • « 

i 

Come now, to-wit, this 9" day of August, 1934, John A. 
Rice and The Bubblestone Company, Appellants j in the 
above Consolidated Causes in Equity, by their Counsel, 
Messrs. Rose & Eichenauer and H. H. Byrne, Esq., and file 
tlie following Assignments of Error upon which they will 
rely in the prosecution of their appeals from the decrees 
of this Honorable Court dismissing the Petition of tjie said 
Appellants for Leave to File a Bill of Review and the 
Motion of the said Appellants to Compel Production of 
Document, which Decrees were made and entered oy this 
Honorable Court at the above entitled Consolidated Causes 
in Equity on the 17th day of May, 1934: 

1. The Court erred in dismissing the Petition fori Leave 
to File a Bill of Review filed by John A. Rice and The Bub¬ 
blestone Company at Nos. 48,832 and 48,833 in Equjitv, by 
its Decree made and entered the 17th day of May, 1934. 

2. The Court erred in denying the Motion to Compel 
Production of Document filed by John A. Rice apd The 

Bubblestone Company at *Nos. 48,832 and 48j833 in 
49 Equitv, bv its Decree made and entered the 17'th dav 
of Mav, 1934. | 

ROSE & EICHENAUER, 

H. H. BYRNE, J 

Attorneys for John A. Rice 
and The Bubblestone Company . 

i 

Service of the foregoing Assignments of Error, accepted 
and receipt of a copy thereof acknowledged this 9" day 
of August, 1934. 

JOHN W. GUIDER, j 
Attorney for Carlisle K. Boos and 
tlie United States Gypsum Company. 

J. T. NEWTON, | 

Attorney for Erik Christian Bayer. 


i 

i 



40 


•J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


Designation of Record. 
Filed June 25, 1934. 


The Clerk will please prepare transcript of record on 
appeal, and include therein, the following: 

I. 

Petition for Leave to File a Bill of Review filed bv John 

* 

A. Rice and The Bubblestone Company, together with Affi¬ 
davits of Frank W. Dalm, Charles Hude, John Parry, 
Grant Curry, Don Rose and H. H. Byrne, being all the Affi¬ 
davits attached to the said Petition. 

II. 

Motion to Compel Production of Document tiled 
50 by John A. Rice and The Bubblestone Company. 

III. 

Affidavit of Grant Currv filed bv John A. Rice and The 
Bubblestone Company in support of Motion to Compel Pro¬ 
duction of Document and Petition for Leave to File a Bill 
of Review. 

IV. 

Order denying the Petition of John A. Rice and The Bub¬ 
blestone Company for Leave to File a Bill of Review, with 
exception and notice of appeal noted thereon. 

V. 

Order denying Motion of John A. Rice and The Bubble¬ 
stone Company to Compel Production of Document, with 
exception and notice of appeal noted thereon. 

VI. 

Order allowing appeal from the Order denying the Peti¬ 
tion for Leave to File a Bill of Review and Motion to Com¬ 
pel Production of Document filed by John A. Rice and The 
Bubblestone Company in the case of Erik Christian Bayer, 
Plaintiff, versus John A. Rice and The Bubblestone Com¬ 
pany, Carlisle K. Roos and United States Gypsum Com- 



J. A. RICE ET AL. VS. E. C. BAYER ET AL. 


41 


panv, Defendants, No. 48,832 in Equity, and fixing ippeal 
undertaking. 

VII. 


Order allowing appeal from the Orders dismissing the 
Petition for Leave to File a Bill of Review and Motjion to 
Compel Production of Document filed by John A. Ri^e and 
The Bubblestone Company in the case of John A. Rice and 
The Bubblestone Company, Plaintiffs, versus Carlisle K. 
Roos and United States Gypsum Company, and Erik Chris¬ 
tian Bayer, Defendants, No. 48,833 in Equity, and 
51 fixing appeal undertaking. 

viii. ! 


Notations of appeal in each of the above Consolidated 
Causes. 

IX. 


Memorandum of filing of Bonds in the amount One 
hundred ($100.00) Dollars in each of the above Consoli¬ 
dated Causes. 

X. 

Citations issued in each of the above Consolidated 
Causes. I 


XI. 


Assignments of Error. 


XII. 

This Designation of Record. 

EDW. E. REINHOLD, 

H. H. BYRNE, | 

Attorneys for John A. Rice 
and The Bubblestone Company. 

Service of the foregoing Designation of Record accepted 
and receipt of a copy thereof acknowledged this 2ejth day 
of June, 1934. 

JOHN W. GUIDER, j 
Attorney for Carlisle K. Roos an<f 
the United States Gypsum Company. 

J. T. NEWTON, ! 

Attorney for Erik Christian Bayer . 




42 


J. A. RICE ET AL. VS, E. C. BAYER ET AL. 


52 


Supreme Court of the District of Columbia. 


United States of America, 

District of Columbia, ss: 

I, Frank E. Cunningham, Clerk of the Supreme Court of 
the District of Columbia, hereby certify the foregoing pages 
numbered from 1 to 51, both inclusive, to be a true and 
correct transcript of the record, according to directions of 
counsel herein tiled, copy of which is made part of this 
transcript, in consolidated causes Nos. 48,832 and 48,833 in 
Equity, wherein Erik Christian Bayer is Plaintiff and John 
A. Rice et al. are Defendants and John A. Rice et. al. are 
Plaintiffs and Carlisle K. Roos et al. are Defendants, as 
the same remain upon the files and of record in said Court. 

In testimony whereof, I hereunto subscribe mv name and 
affix the seal of said Court, at the City of Washington, in 
said District, this 16th day of August, 1934. 

[Seal Supreme Court of the District of Columbia.] 

i FRANK E. CUNNINGHAM, 

Clerk. 


Endorsed i on cover: District of Columbia Supreme 
Court. No. 6285. John A. Rice et al., Appellants, vs. 
Erik Christian Bayer et al. and No. 6286. John A. Rice 
et ah, Appellants, vs. Carlisle K. Roos et al. United States 
Court of Appeals for the District of Columbia. Filed Aug. 
17, 1934. Henry W. Hodges, Clerk. 


(5324-C)