the conversation developed in the record is sufficiently explicit to identify the invention and is as explicit as opposing counsel at the time desired, it must be found that the conversation took place at the time testified to. Nor is the fact of importance, if it be so, that the conference system was the circuit-breaker system for which Scribner had applications then on file in the Patent Office. Whether he sought to patent that system-the circuit-breaker system-or not, it might in either case equally well be that he treated it as a stepping-stone to reach the full invention of this issue.

Angus Hibbard, also an electrician, who was present at the conference of September 9, 1887, considered that the substitution of the converter with the separate coil for each one of several subscribers' lines was different in detail, but not in principle, from what Scribner had developed in earlier conversations with him; and both Hibbard and Haskins consider, and considered at the day and time of the event, that Scribner was the originator of the idea of employing a converter with separate secondary coils for each of several subscribers' lines, located as called for by this issue, and that the partial test and the model soon afterward constructed were the embodiment of Scribner's idea.

The telegraphic communication between Scribner, in Chicago, and E. M. Barton on December 14, 1887, while not affirmative proof of any conception of Scribner prior to that time, is yet wholly consistent with such prior conception and induces a belief in its probability. In the evolution of this invention in Scribner's mind the characteristic noise was at one time to be produced by a vibrator always in motion with current sent over the line only at the time of the test, at another by a vibrator or a converter in action only at the time of the test, at another by a vibrator always in action, with a current always over the free lines, and in each case the vibrator or circuit-breaker was cut off by connection with any two lines for conversation, no matter at what board the connection was made. If these are not the embodiment of the gist of the invention, they are the legitimate antecedents of it and show progress toward the complete invention, as well as recognition of defects that go far to leave it impracticable.

As thought out by Scribner in September, 1887, it was applicable to metallic circuits. His connection with telephone-exchanges, then consisting in this country almost wholly of grounded lines, in his estimation required him to provide against objectionable induction developed in such lines. It is unnecessary to recount his experiments which convinced him that without the perfection of details the improvement would be practically useless, because the whole system would be, as he expresses it, "on a buzz." It is enough that he anticipated this difficulty and that in view of it his further tests were temporarily suspended. The difficulty was met and perhaps overcome by him by the employment of a generator which should transmit inaudible pulsations

to all of the lines through the converters and by employing a vibrator in connection with the operator's test-circuit which should render the pulsations audible to the switch-board operator that would be inaudible to subscribers. Scribner worked out the details, tested the invention, and perhaps overcame the difficulty arising from induced current on grounded lines, although this is not certain, nor is it necessary to decide that point. Under his direction a model was made and tried in the latter part of April, 1888. His application for a patent followed in due course on June 19, 1888.

On December 3, 1887, Kellogg, in Chicago, having conceived this invention, disclosed it to Blanchard. This disclosure has been much criticised by counsel for Scribner; but in the absence of cross-examination of Blanchard sufficient to disclose his want of comprehension of the invention it ought to be found, and is found, from the fact that Blanchard made drawings from notes and directions given by Kellogg, and from the fact that Blanchard testifies that he understood the invention at the time, and in the absence of any answer from him tending to show that this was untrue, that the disclosure to Blanchard is proved and is sufficient. It is thought, also, that the invention as formulated by Kellogg is not impractical, as Scribner's counsel contends, although it appears to be in a form inapplicable to grounded lines.

Upon the whole record it is found that Scribner was the first to conceive this invention; that he forebore to apply for a patent during the progress of his experiments and until he had perfected his invention and tested its value to the fullest extent possible, except in a complete telephone-exchange; that he patiently elaborated it in its working details and sought for and devised subsidiary means of overcoming the induction in grounded lines, and thus that Scribner was using reasonable diligence in adapting and perfecting his invention from the date of his conception to the date of filing his application.

It is claimed by Kellogg that when, on the 14th day of December, 1887, Scribner, in Chicago, was informed by telegram from New York by E. M. Barton, the president of his company, that Angus S. Hibbard had a new test for the Courtland street exchange, then building, which Haskins, the electrical engineer of the Western Electric Company, had examined, and which turned out to be in substance the same as Scribner's September conception, and when Scribner replied that he was afraid it would not work, that he had made a diagram of the same thing and had given it up because the constant buzz of not busy lines would induce a buzz on busy lines and make them test busy and the whole system would be on a buzz and it would be impossible to keep it off from busy lines, Scribner thereby abandoned his earlier conception and so much of this invention as had been conceived of by him at that time. Nevertheless he directed that a test be made, and suggested that it should be tried on pretty long cables. The test resulted in verifying Scribner's anticipa tions of its deficiencies, hereinbefore discussed, and yet proved the gen.

eral merit of the invention and that it might be further developed into a successful thing. It would seem to be a harsh construction to put upon this language of Scribner's to the chief officer of his own company to hold it as conclusively showing an abandonment of his invention as thus far developed, and such construction should not be put upon it unless the inexorable rules of evidence require it. Rights are not ordinarily shown to be abandoned except by proof of acts indicating it upon which opposing rights are built up. Had Scribner used this language to Kellogg it might justify Kellogg in assuming and acting upon the assumption that the field of invention was open to him for all that Scribner had done. Under the circumstances of this case, and with other language in the same conversation directing further tests to be made, I cannot find in the mere words "I gave it up" ground for holding that Scribner left the field.

The decision of the Examiners-in-Chief in awarding priority to Scribner is affirmed.

RUDDICK V. MILLIKEN.

Decided May 24, 1895.

72 O. G., 1651.

PUBLIC USE AND SALE-ON SALE-EXECUTORY CONTRACT.

Where it appears that a fire-alarm box was offered for sale in no other manner than as a part of a fire-alarm system to be installed by the seller and nothing was done evincing an intention on his part to transfer to the buyer a fire-alarm box except upon an executory contract containing conditions and requiring of the buyer much to be done precedent to the transfer of title, Held that the firealarm box was not on sale within the meaning of section 4886, Revised Statutes, although the box was completed, tested, and ready for immediate use at the date of the contract. (Burton v. The Town of Greenville, C. D., 1880, 602; 18 O. G., 411; 3 Fed. Rep., 642, and other cases referred to.)

APPEAL from the Examiners-in Chief.

SIGNAL-BOX.

Application of John J. Ruddick filed June 28, 1890, No. 357,094. Application of George F. Milliken filed April 20, 1891, No. 389,578.

Mr. B. J. Noyes for Ruddick.

Messrs. Bentley & Knight and Messrs. Bentley & Blodgett for Milliken. SEYMOUR, Commissioner:

This is an interference between the application of John J. Ruddick, Serial No. 357,094, filed June 28, 1890, and an application of George F. Milliken, Serial No. 389,578, filed April 20, 1891, on the following issue: 1. In an electric signaling apparatus, the combination, with a signal-wheel and contacts therefor, of an actuating-train for said wheel, a releasing-lever for the train adapted to be moved two steps, one manually controlled to release the train and the other controlled by the train in running to enable the signaling-contacts to operate the signaling-circuit.

2. The combination, with a signal-wheel and actuating-train therefor, of a manual starting or releasing device, a retarded operative device for allowing the train to run for a time longer than the longest closure in any one signal before the apparatus is brought into signaling condition, and a determining device acting during such lapse of time to prevent an interfering signal being sent.

3. The combination, in an electric signaling apparatus, of a signal-wheel and contacts therefor, an actuating-train for said wheel, a non-interference magnet in the circuit, a shunt-circuit around the signal-wheel, and contacts therefor controlled by said magnet, a releasing device for the said train, a restoring device for the armature-lever of said magnet, connected to said releasing device, and a locking device, also connected to the releasing device, adapted to hold the armature-lever in one or the other position according as the circuit through the magnet is opened or closed. 4. The combination, with a signal-wheel and actuating-train therefor, of a noninterference magnet in circuit therewith, a mechanical stop normally holding the armature of said magnet in its attracted position, and means for releasing said armature automatically on the starting of the train, to allow the armature freedom of action during a time longer than the longest closure in any signal.

The Examiner of Interferences adjudicated priority in favor of Ruddick on this issue, whereupon Milliken appealed to the Examiners-inChief on the following grounds:

First. The Examiner of Interferences erred in holding that the subject-matter of the interference is disclosed in Ruddick's original application.

Second. The Examiner of Interferences erred in holding that the subject-matter of the interference is not disclosed in Ruddick's prior application.

Third. The Examiner of Interferences erred in holding that the subject-matter of the interference had not been on sale for two years prior to the filing of Ruddick's original application and in public use and on sale for two years prior to the injection of the matter into Ruddick's case.

Fourth. The Examiner of Interferences erred in refusing to act under Rule 126, and refer the case to the Commissioner before rendering judgment on priority.

At the hearing before the Examiners-in-Chief Milliken made no contention respecting counts 1 and 3 of the issue. The Examiners-inChief declined to call the Commissioner's attention to any matter not relating to priority and rendered a decision affirming the decision of the Examiner of Interferences.

On October 22, 1894, Milliken appealed to the Commissioner from the decision of the Examiners-in-Chief. Before the date of hearing, however, he filed a motion to dissolve the interference as to issues 2 and 4 on the ground that—

there is no interference in fact; or that a statutory bar exists to the grant of a patent to either party; or that the inventions stated by said issues are not patentable to either party; or that neither party is entitled to claim the inventions covered by said issues, because the said inventions are disclosed and claimed in Patent No. 404,438, granted to the said Ruddick June 4, 1889, for non-interfering fire-alarm signal boxes, and that the said Milliken does not assert any date of invention as early as this patent, and the said Ruddick is barred from securing a second patent upon the same subject-matter, under the authority of the Supreme Court in the case of Miller v. Eagle Manufacturing Co., (C. D., 1894, 147; 66 O. G., 845; 151 U. S., 186.)

Milliken also moved that the proceedings in the said interference be suspended until this motion is finally decided. He also petitioned pray

ing, first, that an inquiry be instituted by the Commissioner of Patents to determine whether the said inventions were in public use or on sale for more than two years prior to Ruddick's application and that times be regularly fixed for the taking of testimony and for the hearing thereon; second, that an order be issued returnable on a day to be fixed by the Commissioner and directing that the said Ruddick show cause why such an inquiry should not be instituted; third, that the interference between the said applications of Ruddick and Milliken be suspended until said inquiry is made and the question raised thereby is finally decided. He also incorporates these points in his appeal.

Milliken made no contention before me respecting counts 1 and 3 and conceded priority to Ruddick as to counts 2 and 4. The principal contention in the interference case proper requires, therefore, no more than the formal affirmance of the decision of the Examiners-in-Chief in awarding priority to Ruddick. There remain, however, two other questions addressed to the discretion of the Commissioner, both argued before me. First, was Ruddick's invention, as expressed in counts 2 and 4 of the issue, in public use or on sale more than two years prior to his application for a patent? Second, was Ruddick's said invention disclosed and claimed in his prior patent?

Ruddick, in November, 1887, made two fire alarm boxes embodying this invention to demonstrate its working. These models were taken by Mr. Polglase to Greenville, Ohio, in January, 1888, and exhibited there, where he attempted to secure a contract for putting in a fire-alarm system. They were taken to Wausau, Wis., in February, 1888, and exhibited by the Richmond Company, assignees of Ruddick, in competition for a fire-aların system in that city.

On February 13, 1888, the Richmond Company made a contract with the city of Wausau obligating the company to install a fire-aların-telegraph system in that city for the sum of $2,995, payable in ninety days from the acceptance of the system. The company was to furnish an automatic electromechanical repeater with two independent circuits, two galvanometers, a test-galvanometer, a sufficient number of cells, wire lightning-arresters, alarm-bells, engine-house gongs, poles, fourteen fire-alarm signal-boxes, wherever located by the representatives of the city, a bell-striker upon a bell to be selected by the representatives of the city, gongs, and the accessories necessary for a fire-alarm system, and in addition was to furnish material and to do the work, so that the entire system should be complete and ready for operation within ninety days after the signing of the contract. The company further contracted as follows:

The city of Wausau, represented by its authorized representatives, shall furnish a suitable room for the central or battery station when required by the undersigned and shall secure the right of way through the public highway for the wire circuits and the use of such church or other bell as may be selected for giving alarms. Finally within ten days after a written notice from us to the authorized representatives of said city that the said telegraph system is completed ready for inspection,