The last section was superseded by the following:

SEC. 9. That the determination of appeals from the decision of the Commissioner of Patents now vested in the general term of the Supreme Court of the District of Columbia, in pursuance of the provisions of section seven hundred and eighty of the Revised Statutes of the United States, relating to the District of Columbia, shall hereafter be, and the same is hereby, vested in the court of appeals created by this act; and, in addition, any party aggrieved by a decision of the Commissioner of Patents in any interference case may appeal therefrom to said court of appeals. (27 Stat. L., 436.)

In an interference the power of the Commissioner is limited by section 4904, Revised Statutes, to the question of priority of invention. Therefore, our jurisdiction embraces but two classes of cases: First, where an application for a patent or the reissue of a patent has been twice rejected by the Primary Examiner, then by the Board of Examiners-in-Chief, and afterward by the Commissioner; and, second, where the Commissioner in an interference has awarded priority to one of the parties. It was so held by this court after a careful examination of the matter in Cosper v. Gold (C. D., 1910, 282, 285; 151 O. G., 194, 195; 34 App. D. C., 194, 198) and in re Fullagar (C. D., 1909, 270; 138 O. G., 259; 32 App. D. C., 222). The appeal before us falls within neither class. True, the action of the Commissioner may in effect result in Carvalho's failure to get a patent, for it is possible that if he filed a new application, which he would have a right to do, he would encounter the bar of public use. This, however, is not a necessary result of the rule we announce, because in most cases a new application would save the applicant's rights. If it would not in any case, the result would be due to the applicant's dilatoriness, not to the law. However that may be, Carvalho's application for a patent was not twice rejected by the Primary Examiner, nor was it ever passed upon by the Board of Examiners-in-Chief. Its rejection therefore is not one of those contemplated by section 4909.

For these reasons we are without jurisdiction to review the decision of the Commissioner. In reaching this conclusion we do not forget that this court announced a different doctrine in Selden's case (C. D., 1911, 306; 164 O. G., 741; 36 App. D. C., 428), Moore v. Heany (C. D., 1909, 488; 149 O. G., 831; 34 App. D. C., 31), and in Mattulath's case (C. D., 1912, 490; 179 O. G., 853; 38 App. D. C., 497).

This doctrine, however, is not only inconsistent with the rulings in the Cosper and Fullager cases, but also with the quoted statutes, and is therefore disapproved.

The appeal is dismissed.

Dismissed.

[Court of Appeals of the District of Columbia.]

MACCONNELL v. WOOD.

Decided March 4, 1918.

250 O. G., 767; 47 App. D. C., 424.

INTERFERENCE-PRIORITY-STEREOTYPE-PLATE-FINISHING MACHINE.

Where W. had completed working drawings of the device of the issue and had filed his application prior to the dates on which M. completed his machine or filed his application, Held that priority was properly awarded to W.

Mr. C. J. Sawyer for the appellant.

Mr. L. W. Southgate for the appellee.

VAN ORSDEL, J.:

This is an appeal in an interference proceeding, the subject-matter of which relates to stereotype printing plates. The issue is defined in the following counts:

1. In a stereotype plate finishing machine, the combination of means for first finishing the plate, means for thereafter applying a cooling fluid to the plate, and a support arranged so that the plate will be directed from the finishing means to a position where it may be acted upon by the cooling means and the truth of the finished plate preserved.

2. In a stereotype plate finishing machine, the combination of a runway or guide along which semicylindrical plates can be guided on their straight edges, and a finishing mechanism, and a cooling mechanism arranged so that the plates will be guided by the straight edges through the finishing mechanism on and through the cooling mechanism.

3. In a stereotype plate finishing mechanism the combination with a finishing device having means for freely supporting a plate therein after it is finished, and a series of rollers arranged in alinement with said supporting means for receiving plates therefrom, of a cooling arch located over said rollers and adapted to cool the plate as it passes along the same.

The Examiner of Interferences awarded priority to Wood as to count 3 and to MacConnell as to counts 1 and 2. On appeal the Board of Examiners-in-Chief reversed the Examiner of Interferences as to counts 1 and 2, awarding priority as to all counts to Wood. On appeal the Commissioner of Patents affirmed the Board of Examiners-in-Chief, and from this decision the case was appealed to this court.

The invention is described in the opinion of the First Assistant Commissioner, as follows:

The invention relates particularly to the finishing of stereotype plates and especially to the means for cooling these plates in the machine in which they are finished. Prior to the present invention it was customary to cool the plates by removing them from the finishing mechanism and dipping them in a water bath. This was open to several objections and in the devices of the

parties the plates are supported between the finishing mechanism and the cooling means, so that as the plates are conveyed from the finisher to the cooler they are free from uneven strains and are not distorted from the form imparted thereto by the finisher.

The interference turns upon an issue of fact. Voluminous testimony was given, which it would serve no good purpose to here review. We will content ourselves with a statement of conclusions. It is unnecessary to pursue Wood's case further than was done by the tribunals below. He was accorded by each January 15, 1906, as a date of conception of the invention. This conservative finding is not even questioned by appellant. We may, therefore, let Wood's case rest with this date, since it cannot be questioned that his working drawings of that date, from which his second machine was built, disclosed a complete conception of the invention of the issue. Whatever conception Wood may have shown in his first machine or by other evidence we need not consider.

We now come to MacConnell's case. Does he overcome Wood's date of January 15, 1906? It may be inferred from the testimony that MacConnell had a nebulous idea of some sort of a cooling device, but his conduct forbids the conclusion that he had any formulated plan. In the winter of 1905-1906 he built a machine for the Philadelphia Press, a photograph of which is in evidence. While the machine shows a conveyer by which the plates were carried from the finishing mechanism to a point of delivery, it not only possessed no cooling device, but the plates were manually taken from the conveyer and cooled by dipping them in a tank of water, a method concededly old in the art.

On December 7, 1904, MacConnell applied for a patent for a machine which disclosed a device substantially the same as the Philadelphia Press machine. True, he claims that when his application was made he disclosed the present issue to his attorneys, but the attorneys were not put upon the stand to corroborate this statement, and the application itself is strong evidence of what was in his mind on that date. But it is contended that it was his intention to attach the cooling device to the Philadelphia Press machine after its installation. Ericsson, an employee of the Philadelphia Press, testified that MacConnell, in January, 1905, gave him—

a sketch that provided a spray, that is, the plate was to be sprayed as it turned over the conveyer, in a half circular arrangement he had drawn, a half cylinder, showing a water trough at the bottom to take up the surplus water and a waste pipe at the extreme end to take the water away. That sketch he gave me and to the best of my recollection I took it down to Mr. Townsend to show him what we were going to get.

Townsend was the manager of the Philadelphia Press, and later had the machine discarded as unsatisfactory. He would certainly

have known if an agreement existed at the time of its installation to subsequently attach a cooling device, or if Ericsson showed him a sketch; but, as in the case of the attorneys, he was not put upon the stand. The unexplained failure to produce these very material witnesses irresistibly leads to the inference that their testimony would have been unfavorable.

Having this evidence within his control, and not producing it, it must be presumed that it was unfavorable to his case. (Huff v. Gulick, C. D., 1912, 488; 179 O. G., 579; 38 App. D. C., 334.)

A witness, Ruwell, who constructed the Philadelphia Press machine, testifying ten years after the event, makes some indefinite statements of MacConnell's idea to attach a device for cooling the plates by means of a spray while passing over the conveyer, but this evidence, when given the full credit to which it is entitled, amounts only to an indefinite idea in the mind of MacConnell. The fact remains that the Philadelphia Press machine was delivered on January 26, 1906, eleven days after Wood's date, without the device of the issue, and the finished machine is strong evidence of what was in MacConnell's mind on and prior to that date.

Wood constructively reduced the invention to practice by filing his application for a patent April 6, 1906. MacConnell actually reduced to practice by the completion of a machine in December, 1906, or early in January, 1907. MacConnell was the junior party, and has failed, we think, to overcome Wood's case.

The decision of the Commissioner of Patents is affirmed, and the clerk is directed to certify these proceedings as by law required. Affirmed.

[Court of Appeals of the District of Columbia.]

LUCKETT V. STRAUB.

Decided February 4, 1918.

250 O. G., 999; 47 App. D. C., 379.

1. INTERFERENCE-PRIORITY.

The evidence reviewed and Held that since L. conceived, disclosed, and reduced the invention to practice prior to the earliest date of conception alleged by S. priority should be awarded to L.

2. SAME RIGHT TO MAKE THE CLAIM-QUESTIONS NOT RAISED IN THE PATENT OFFICE ARE NOT BEFORE THE COURT.

The question whether L.'s construction embodies the issue not having been raised in the Patent Office, Held that this question is not before the court; but it was noted that L.'s garment responds to the terms of the issue.

Mr. D. P. Wolhaupter for the appellant.

Mr. P. B. Turpin for the appellee.

ROBB, J.:

Appeal from a decision of an Assistant Commissioner of Patents in an interference proceeding awarding priority to the appellee. The invention will be understood from a reading of the single claim, as follows:

A union undergarment having a permanently closed crotch, an opening extending partially across the back of the undergarment and down the outside of one of its legs and terminating short of the lower end of said leg, the latter being permanently closed below the said terminus of said opening, and means for detachably fastening the drop seat flap defined by said opening.

The earliest date of conception claimed by Straub was December of 1912. He filed August 11, 1913. Luckett's application was not filed until later.

It is clearly established that Luckett conceived and disclosed the invention in February of 1912, many months before Straub's entry into the field. Soon after this Luckett produced and showed to others a garment embodying the issue. Among those to whom he disclosed the invention was a Mr. Ellinghaus, a merchant tailor. Mr. and Mrs. Ellinghaus, on August 18, 1912, called at the Luckett home and were told that Mr. Luckett was lying down. Thereupon Mr. Ellinghaus, who knew Mr. Luckett well, went to Mr. Luckett's room and found that the only clothing he had on was the garment above referred to. Mr. Ellinghaus's attention was directed to it and Mr. Luckett demonstrated its intended functions. Thereupon Mr. Luckett dressed and went downstairs. Mrs. Ellinghaus fixes the date with great certainty. She testifies that a friend of hers was married at St. Francis De Sales Church, Maryland, on the 12th of September; that this friend called at the Ellinghaus home exactly one month prior to the wedding, and the fact was commented upon; that this call from the prospective bride was a subject of discussion the following Sunday between Mrs. Ellinghaus and Mrs. Luckett.

In the fore part of September of 1912 Dr. Dick, the family physician of the Lucketts, was shown the garment previously described, the result being that a partnership between the doctor and Mr. Luckett was formed for the purpose of exploiting the invention. The doctor advanced small sums of money and finally garments embodying the invention were made and placed upon the market.

We agree with the Examiner of Interferences and the Examinersin-Chief that Luckett reduced the invention to practice as early as August 18, 1912. While the record fails to disclose that any question was raised in the Patent Office as to whether the Luckett construction embodies the issue, the suggestion now is made that it does not because "the opening of the exhibit extends entirely across the back" of the garment. This question really is not before us, but we may observe that Luckett's garment responds to the terms of the issue, for