was the General Electric Company with whom Colby contracted rather than Moody personally.

The law with regard to parties occupying this relation, where the employer has conceived the main plan of his invention, is well settled. In the case of Milton v. Kingsley (C. D., 1896, 420; 75 O. G., 2193; 7 App. D. C., 531) the court said:

We regard it as well-settled law that when one who has conceived the principle or plan of an invention employs another to perfect the details and to realize his conception and the employee devises new and valuable improvements in the original conception or invention the improvements belong to the employer and not to the employee. (Curt. on Pats., secs. 120, 123.) It seems equally and upon similar grounds to be the dictate of equity and good conscience that one whose contractual relations with an inventor are those of partnership, which require him in express terms or by necessary implication to use his best efforts to promote the invention and all the improvements thereon for the benefit of the partnership, and who himself has made an improvement on the invention, stimulated solely by the possession of the original inventor's ideas under the contract, should not be permitted to claim the improvement as his own to the exclusion of his copartner, the original inventor. We think that this is the reasonable deduction to be made from all the cases. (Diron v. Moyer, 4 Wash., 68; Allen v. Rawson, 1 M., G. & S., 551; Agawam Company v. Jordan, 7 Wall., 583; O'Reilly v. Morse, 15 How., 62; Bloxam v. Elsee, 1 Car. & P., 567.)

And in the case of Gedge v. Cromwell (C. D., 1902, 514; 98 O. G., 1486; 19 App. D. C., 192) the court stated the rule as follows:

The rule is that one, who, by way of partnership, or contract, or in any other, empowers another person to make experiments upon his own conception for the purpose of perfecting it in its details, is entitled to the ownership of such improvements in the conception as may be suggested by such other person. And we do not understand that the exceedingly liberal policy of the Patent Office in the allowance of independent patents for minute improvements is to be regarded as contravening this rule. Independent inventors may not come within the scope of the rule.

Counsel for Moody has cited certain decisions in support of his statement that

the mere fact that a man is employed to build a device does not of itself make that man an employee in the sense that any invention he makes belongs to his employer.

These decisions, however, bear upon the question of ownership of patents taken out by an employee or upon the question of the right of an employer to a shop license where inventions were made by an employee which were developed at the expense of the employer. The question here, however, is not of ownership of the patents, but of the one to whom the patent should be granted-that is, the one who in the eye of the law shall be held to be the inventor.

The lower tribunals have held that Colby gave Moody the main. plan of the invention in the letter of November 13, 1903, and the accompanying blue print and that whatever developments thereof

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were made by Moody inured to the benefit of Colby under the doctrine of Milton v. Kingsley and Gedge v. Cromwell, supra.

Attention was called by the Examiner of Interferences to the case of Gallagher v. Hastings, (C. D., 1903, 531; 103 O. G., 1165; 21 App. D. C., 88,) in which, although it appeared that Gallagher while constructing a car-bolster from a general disclosure given him by Hastings added a certain new and important feature, the court held that inasmuch as the relation of employer and employee existed between the parties the invention should inure to the benefit of the employer.

It appears that at the same time that Colby filed the application here in issue he filed another application showing the general features of the furnace built at Schenectady and claiming, broadly, an induction-furnace in which the primary winding was formed of tubing through which cooling fluid passed, but which was not limited, as is the present issue, to a winding made of two parts, one disposed within and the other outside the crucible.

It is contended by counsel for Moody that the record of this other application of Colby, which matured into Patent No. 849,641, shows that the claims therein were allowed only on the theory that there was invention in making the primary winding of a furnace of this type tubular, because the fluid passing therethrough kept down the resistance of the primary winding, and that there was no invention in merely putting a water-jacket around the core of the transformer, which was all that was suggested by Colby in his letter to Moody. As pointed out by the lower tribunals, however, it was not new to use a tubular winding for a transformer, and whatever improvements Moody may have made over the broad idea suggested to him in the disclosure by Colby inures to Colby's benefit under the doctrine of the decisions above cited.

It is very significant that in Moody's application no claim was ever made for the broad idea of making the primary winding of an induction electric furnace tubular, so that a cooling fluid might be passed therethrough. The claims of the Moody application are all limited to a winding composed of two parts, one inside and the other outside the crucible, or else to a primary winding divided into sections connected in multiple or to a primary winding consisting of a metallic tube with a stranded metallic conductor passing through the same. It appears from the testimony that Moody knew of the other Colby application as early as February 2, 1907, when Colby sent Moody an affidavit entitled in application No. 288,630, which is the application upon which the patent issued, setting forth facts as to the building of the furnace in 1904. In his testimony Moody on cross-examination stated that he regarded himself as the inventor of this broader invention; but no explanation whatever is

given of the reasons why no such claims were placed in Moody's application when filed or even at any subsequent time.

Reference has been made to the fact that neither Colby nor Waldo was called as a witness on behalf of Colby's assignee. The facts leading up to the development of the invention were, however, fully brought out in the examination and the cross-examination of the witnesses on behalf of Moody. Accepting Moody's denial that Colby disclosed to him any of the details of the invention as conclusive in the absence of any testimony on behalf of Colby, the decision must still be adverse to Moody, since the record shows that the main plan of the invention was disclosed to Moody by Colby. The decision of the Examiners-in-Chief is affirmed.

FRICKEY V. OGDEN.

Decided November 13, 1913.

199 O. G., 307.

INTERFERENCE-PRIORITY-FINAL DECISION-ESTOPPEL-ASSIGNEE.

Where during the pendency of an interference between O. and C., but too late to be added thereto, an application was filed by F. which was assigned to the same party as that of C. and it appeared that the assignee controlled both inventions and could have filed the application of F. in time for it to have been included in the interference between O. and C., Held that after a final decision in that interference in favor of O. the assignee of F. and C. is estopped to contest further with O. the subject-matter thereof.

ON ORDER.

PULVERIZER.

Mr. Frederick R. Cornwall for Frickey.

Messrs. Higdon & Longan and Mr. J. S. Barker for Ogden. EWING, Commissioner:

This case having been called to my attention through a petition by Ogden, an order was issued on the party Frickey to show cause on October 10, 1913, why the interference should not be dissolved on the ground that the question of priority of invention is res adjudicata in view of the decision in favor of Ogden in interference No. 32,834, Cornwall v. Ogden.

The latter interference included the same application of Ogden as is involved in the present interference and an application of one Cornwall, assigned to the Williams Patent Crusher and Pulverizer Company, of St. Louis, Mo. Priority in that interference was awarded in favor of Ogden upon an issue identical with that of the present interference. On appeal the decision of the Examiner of

Interferences was affirmed by the Examiners-in-Chief, and their decision became final on June 26, 1913, through the failure of Cornwall to appeal therefrom.

The application of Frickey was filed on April 1, 1912, after testimony had been taken in the former interference and while it was awaiting final hearing. A motion filed on the same date as the Frickey application to add his application, which it is admitted is owned by the assignee of the Cornwall application, to the former interference was denied by the Examiner of Interferences on the following grounds: First, that inasmuch as Frickey was familiar with the entire situation he should have filed his application at once, if he desired to contest the interference, and not have waited until proofs had been taken, and, second, because of Frickey's admission in his testimony and in his brief that he abandoned the invention or conceded priority in favor of Cornwall. A petition for a review of the decision of the Examiner of Interferences was denied by the Commissioner.

In the briefs filed on behalf of Frickey in response to the order to show cause he admits that the Cornwall and Frickey applications are owned by a common assignee and recognizes that as a general rule two applications owned by a common assignee cannot be put in successive interferences with a third party; but he contends that the invention in issue was disclosed by Frickey to Ogden and that this disclosure could not be urged in behalf of Cornwall in the prior interference.

This case is believed to fall within the doctrine of res adjudicata set forth in ex parte Temple and Goodrum, (C. D., 1912, 70; 176 O. G., 526.) As stated in that case

This doctrine of res adjudicata is applied by the courts for the salutary purpose of preventing a successful party to litigation being vexed with subsequent litigations by the same party who contested the prior suit or by those in privity with him over the same cause of action.

Although the Frickey application was not filed until testimony had been taken in the former interference, it appears from the record therein that prior to the declaration of that interference the assignee of the Cornwall application had control of the Frickey invention; that it was familiar with the entire situation and knew of the filing of the Ogden application; that the question whether an application should be filed in the name of Cornwall or Frickey was considered, and that it was decided to file the application in the name of Cornwall, as he was thought to have made the invention prior to Frickey. (Cornwall's record, pp. 14 and 102.)

Having control of the inventions of both Frickey and Cornwall and having had the opportunity of filing the Frickey application in time for it to be included in the interference, it is held that the

assignee is now estopped from further contesting with Ogden the subject-matter of the interference based on the Frickey application. (Ex parte Temple and Goodrum, supra; Blackford v. Wilder, C. D., 1907, 491; 127 O. G., 1255; 28 App. D. C., 535; The New Departure Manufacturing Co. v. Robinson, C. D., 1913, 332; 188 O. G., 1055; 39 App. D. C., 504.)

The statement of counsel for Frickey that in the present interference he desires to show that Ogden derived his knowledge of the invention from Frickey does not bring this case outside of the ruling made in the case of ex parte Temple and Goodrum, supra, since the question of disclosure by one of the interferants to another, equally with that of priority in the dates of their original inventions, is involved in an interference proceeding.

The interference is dissolved upon the ground that the right of the common assignee of the Cornwall and Frickey applications, who is the real party in interest, to have a patent granted upon the Frickey application, containing the claims of the issue, is res adjudicata by reason of the adverse decision in the Cornwall v. Ogden interference, and the files are remanded to the Primary Examiner for further action in accordance with this decision.

THE REYNOLDS & REYNOLDS COMPANY v. J. C. BLAIR COMPANY.

Decided January 6, 1914.

199 O. G., 308.

TRADE-MARKS-INTERFERENCE-PRIORITY-ABANDONMENT.

Where it appears that R. & R. began the use of the mark prior to B. and that from the time of adoption thereof sold tablets bearing the mark or kept such tablets in stock or kept on hand the plates for marking paper with this trade-mark and supplied the tablets whenever called for by customers, Held that the mark had not been abandoned and that priority was properly awarded to R. & R.

APPEAL from Examiner of Interferences.

TRADE-MARK FOR PAPER.

Mr. Horace L. Beall for The Reynolds & Reynolds Company. Messrs. A. C. Fraser & Usina and Messrs. Fraser, Turk & Myers for J. C. Blair Company.

NEWTON, Assistant Commissioner:

This is an appeal from a decision of the Examiner of Interferences awarding priority of use of the trade-mark" White House," for writing-paper, to The Reynolds & Reynolds Company.