The issue of the interference is as follows:

1. In a semi-automatic gun, the combination with the gun body and cradle, of one or more recoil-cylinders, a main bolt journaled to the breech of the gun, breech mechanism operated by said main bolt, means on said main bolt for operating same automatically, a cylinder rigidly attached to said gun exterior to the recoil-cylinder; a piston, piston-rod and a spring under compression, all mounted in said cylinder and all recoiling with the gun, a connection between said piston and said main bolt, and mechanism operated on counter-recoil for opening the breech against the action of said spring.

2. In a semi-automatic gun, the combination with the gun body and cradle, of one or more recoil-cylinders, a main bolt journaled to the breech of the gun, breech mechanism operated by said main bolt, means on said main bolt for operating same automatically, a cylinder rigidly attached to said gun exterior to the recoil-cylinder; a piston, piston-rod and a spring under compression, all mounted in said cylinder and all recoiling with the gun, means for varying the compression of said spring, a connection between said piston and main bolt, and mechanism operated on counter-recoil for opening the breech against the action of said spring.

This interference as originally declared also involved the party Hermsdorf; but the Primary Examiner dissolved the interference as far as Hermsdorf was concerned as to count 2, on the ground that he was not entitled to make a claim corresponding to that count, and the Examiner of Interferences rendered a judgment on the record against Hermsdorf that he was not the first inventor of the invention set forth in count 1. No appeal was taken from that decision, and the interference was continued as to the parties Driggs and Schneider.

Schneider took no testimony; but he is entitled, under a stipulation that the subject-matter of the invention in issue here is embodied in French Patent No. 361,667 and that the party Schneider is the party named in that French patent, to the date on which the application for that patent was filed-namely, August 3, 1905-as his date of conception and constructive reduction to practice.

Driggs in his preliminary statement alleged conception in 1903 and reduction to practice in June, 1905. The Examiner of Interferences found that the testimony offered on behalf of Driggs established neither conception nor reduction to practice of the invention by him prior to the date to which Schneider is entitled. The Examiners-in-Chief in reversing this decision found that Driggs had established both conception and reduction to practice prior to this date.

Driggs himself testifies very clearly to a conception of the invention as early as 1903 and to the making of drawings disclosing the invention. He also testifies that a gun was made in accordance with these drawings and was successfully tested in June, 1905. He testifies, further, that this gun was shipped to the Navy Department of the United States in the latter part of June, 1905; that it was entered in

a competitive test in July, 1905, and that as a result of this test it was adopted as a standard by the Navy Department.

It is contended on behalf of Schneider that no one has testified to a disclosure of the invention by Driggs and that while drawings have been introduced in evidence there is no showing that these drawings embody Driggs's invention or were made under his direction.

That a gun embodying the invention was actually built by the company with which Driggs is connected is clearly established by the testimony of Driggs, Hughes, Harris, and Myers. Hughes testifies that when he entered the service of the company in June, 1905, he saw a three-inch semi-automatic gun; that this gun was subsequently shipped to the Navy Department, and that after the test at Indian Head by the Government officials he again saw it at the navy-yard at Washington; that he made careful measurements of this gun and constructed working drawings therefrom for the use of the Navy Department in the subsequent manufacture of guns of this type, and that the gun had in no wise been changed since he first saw it in 1905. He introduced in evidence prints of certain sheets of these drawings which clearly disclose the invention in issue. It also appears from the testimony of Myers and Harris that only one three-inch semiautomatic gun was made and shipped from the works of the DriggsSeabury Ordnance Company prior to the time the testimony was taken.

The contention that Driggs has not established that he was the inventor of this gun is clearly not tenable under the holdings of the Commissioner in Herman v. Fullman, (C. D., 1903, 452; 107 O. G., 1094.) In respect to a contention raised in that case similar to the one here raised the Commissioner said:

Fullman himself says that the machine is now and has been ever since March 25, 1901, in operation in the offices of the Pittsburg & Lake Erie Railroad Company. (Q. 34.) If this were not the fact, it could have been easily disproved; but no effort appears in the record to disprove it. Herman, in fact, does not seriously attack the genuineness of this machine or the fact of its practical operation. He merely says that there is no evidence that this machine was made from disclosures by Fullman, and that therefore he can derive no benefit from it. This contention is not sustained by the evidence, since it is very clear that the machine was installed by Fullman's company, and it must be assumed that he was the originator, as no one else connected with the company claims it. He swears that he invented it, and his statement must be taken as true. There is no contention that the machine was made upon the disclosure of Herman, and therefore the suggestion amounts to nothing more than a statement that the machine may have been made from disclosures by some stranger to the record. There is no evidence to support the suggestion, and even if there was it would be immaterial in this proceeding. (Foster v. Antisdel, C. D., 1899, 413; 88 O. G., 1527; 14 App. D. C., 552.)

This decision was affirmed by the Court of Appeals of the District of Columbia, (C. D., 1904, 625; 109 O. G., 1888; 23 App. D. C., 259,)

and while this particular point was not specifically referred to the Court said:

That has

We shall not be more specific in reciting the evidence in the case. been done quite fully by the tribunals of the Patent Office, and especially in the opinion of the Commissioner of Patents; and it would serve no useful purpose to repeat it. We are satisfied with the conclusion reached by them.

As the testimony of all the witnesses above referred to shows that this gun was shipped from the works of the Driggs-Seabury Ordnance Company as early as June 27, 1905, the only further question to be considered is whether Driggs has established a reduction to practice prior to the date to which Schneider is entitled, and, if not, whether he has established that he was diligent in reducing the invention to practice at that time and subsequently thereto. The Examiners-in-Chief held that while there was no direct corroboration of Driggs's testimony that the gun operated successfully when tested at the proving-ground of the Driggs-Seabury Ordnance Company at Sharon, Pa., the facts of the case were sufficient to corroborate his testimony, since it appeared that after this test the gun, the construction of which had cost some thirteen thousand dollars, was entered in the competitive test of July, 1905, and found satisfactory, and that it could not be presumed that an ordnance company would carry out such a test and then finish the gun up and ship it to the Navy Department for an exhaustive trial with a view to its acceptance if it had not worked successfully.

It is not deemed necessary, however, to decide whether Driggs is entitled to the date when this gun was tested at Sharon as the date of reduction to practice. Driggs himself testifies that the test at Indian Head took place in the latter part of July, 1905. He has introduced in evidence a letter from the Navy Department, dated July 12, 1905, which states that the test would be held on the following Tuesday, and he testifies positively that it was held on that date. It clearly appears from the testimony of Hughes and Harris and Myers that following this test this type of gun was adopted by the Navy Department and various other guns made exactly in accordance therewith ordered from this company and from the American & British Manufacturing Company, who paid to the Driggs-Seabury Ordnance Company a royalty of $150 per gun. That the guns subsequently made for the Navy Department were exactly like this gun so far as the issues of this interference are concerned is clearly established by Hughes's testimony that he made working drawings, prints of which disclose the invention, for the use of the Navy Department from this gun in the fall of 1906 and that it had in no wise been changed from the time it left the Driggs-Seabury Ordnance Company in June, 1905.

While it is well established that the testimony of an inventor uncorroborated is not sufficient to establish reduction to practice, it is believed that his testimony if uncontradicted is clearly sufficient to establish the date upon which certain alleged tests were held, especially, as in this case, when the testimony, if not true, could so easily have been rebutted. The case so far as it relates to the failure of Schneider to rebut the evidence of Driggs and his witnesses as to the fact of the test at Indian Head, Md., having been successful is analogous to the case of Stanbon v. Howe, Warren, and Furber, (C. D., 1910, 349; 153 O. G., 823; 34 App. D. C., 418,) decided by the court of appeals. In that case the inventor and certain witnesses had testified that a machine was built and tried in a shoe-shop and that subsequently other machines identical therewith had been built and sold. In holding that the earlier machine was a successful reduction to practice and not merely an abandoned experiment the court said that it was significant that no attempt had been made by the opposing party to investigate the machines alleged to have been sold and put in use to determine whether they were operative

or not.

In the case of Dashiell v. Tasker, (C. D., 1903, 551; 103 O. G., 2174; 21 App. D. C., 64) in which the invention involved was an infringement in breech-loading mechanism for rapid-fire ordnance, the Court, after stating that the evidence produced on behalf of Dashiell was not sufficient to

make it clear beyond a reasonable doubt that his repeated efforts to reduce his conception to practical use resulted in anything more than unsuccessful experiments,

said:

The gun to which the breech-loading mechanism is adapted was made by and belongs to the Government of the United States, and the latter allowed the gun to be used and converted in order to test the value of the supposed invention, and if successful to make a distinct type of rapid-firing ordnance. But after all the tests that were made it does not appear that the Government has made any use of the gun; nor does it appear that the alleged improvement was ever applied to more than the one gun. The experimental tests were made at considerable intervals, and after changes and alterations were made in the breech mechanism. These tests were made during the years 1896, 1897, and 1898. There were sufficient time and opportunity afforded certainly for the ordnance officers of the Government, under whose direction and supervision the final tests were made at the Government proving grounds, to approve and accept the breech mechanism as a valuable improvement in breech-loading guns; but no such thing appears to have been done. There is not even a certificate or memorandum made by those officers that the tests were satisfactory, and the invention a valuable improvement in breech-loading guns evidence, in the absence of those officers as witnesses, that would have been most material and important on the question of reduction to practice.

In the present case, however, the testimony shows that the gun which was made by the Driggs-Seabury Ordnance Company and which embodied the invention in issue was accepted by the Government after a competitive test and that a large number of guns were manufactured for the Government in accordance therewith. In view of this testimony no presumption unfavorable to Driggs can be drawn from the fact that the ordnance officers of the Government who were present at that test were not called as witnesses.

As the test at Indian Head, Md., was prior to the date to which Schneider is entitled, it must be held that Driggs has established conception and reduction to practice of the invention prior to that date and that priority of invention was properly awarded to him. The decision of the Examiners-in-Chief is affirmed.

EX PARTE GENTRY.

Decided December 14, 1910.

162 O. G., 537.

APPLICATION-REJECTION-WITHDRAWAL OF ONE OF TWO CORRELATIVE REFERENCES-FINAL REJECTION NOT PRemature.

Where the Examiner rejects a claim as not patentable over either of two references and in response to an argument repeats the rejection, relying upon only one of these references, Held that it was proper to make this rejection final.

ON PETITION.

SAW-HANDLE.

Messrs. C. A. Snow & Co. for the applicant.

MOORE, Commissioner:

This is a petition asking that the Primary Examiner in charge of this application be instructed to reopen the same to consider a response to his rejection of the claim now in the case as given on August 26, 1910.

The case as presented embodied two claims. The first rejection included both claims and was on the ground that no invention was shown "over Root or Knapp in view of Richardson." The applicant then canceled one of the claims and argued the patentability of the other claim over the references cited. The Examiner then rejected the remaining claim as lacking invention "over Knapp in view of Richardson," and added an explanation, in about six lines, of his reasons for insisting that this claim lacked patentability in view of these references. This rejection was made final, and from such action the present petition is taken.