On April 1, 1893, Kingsley filed his application for a patent for this invention, and was the first to file, and his specification accords with the test. It was then in process of reduction to practice without the knowledge of Milton.

On the 5th day of April, 1893, Dudley and Michener wrote Commodore Mellville:

A new device has been found necessary to complete the smoke-consumer, in order to make it more indestructible, and the application for such a device has now been filed, which completes the series necessary to perfect the invention. The application referred to was filed by Albert F. Kingsley for improvements in smoke-consumers, and is numbered 468,700. This invention relates to the supports of the smoke-consuming device patented under the applications which you recommended to be made special, and makes the entire smoke-consumer as indestructible as it is possible to make one. This invention will insure a practical life of the smoke-consumer equal to that of the fire-box in which it is placed, and is, therefore, a necessary corollary to the original proposition. (They ask him to have the application made special.)

*

As soon as this last patent is granted, the inventors will be ready to submit for your approval designs for the boiler and fire-box.

On April 6, 1893, Kingsley wrote Milton:

Other claims were allowed-which, after trial, were found to be impracticable, until I found this design, which I hope will prove what we desire.

A further study in the Patent Office convinced me that the present design was not protected by your patents, and in using it we would have no protection whatever. I also learned as you did not design the invention you could not apply for it in your name, as intended, and that it was necessary for me to file claim in my own name for the welfare of all. This I did, on advice. If this claim is rejected it will be an evidence that others could not claim it, to our detriment. If it is allowed, the present device must rest in my name, but I did not do this from personal desire for gain, but from enforced circumstances, in which I found we were surrounded. Your apparent avoidance of me prevented me from consulting or seeing you in the matter.

Milton made no written reply to this letter. Some days prior to April 20, 1893, Milton had a conversation with Kingsley in Kingsley's office, No. 805 D street, N. W., in which Kingsley made mention of his own application for a patent, at that time pending. Milton claims to have remarked: "Mr. Kingsley, the device which you have claimed is mine; it originated with me." It is claimed that Milton asked Kingsley when he designed it, and that Kingsley told him some time prior to the 10th of March, about, probably, the first of March. At a subsequent interview, about the 20th of April, 1893, Kingsley and Milton again met, this time at Wilmarth's office. At this interview it is said by Milton that he stated to Kingsley that the conditions with Milton of further business association were that Kingsley should comply strictly with the contract between them and that the application Kingsley had filed for a patent, being for a device which had originated with Milton, should be withdrawn, and that Kingsley refused both propositions.

In another version Milton says that Kingsley asked him when he had designed the peculiar form of air-pipe used for engine No. 805, on which Milton had learned that Kingsley had applied for a patent; that

Milton told him a few days prior to the 10th of March, 1893; that Kingsley replied: "If that is all you can do, Mr. Milton, you would have a very poor case, as I had ordered the pipes before that time."

It does not distinctly appear when Kingsley began ordering the equipment for the proposed test in engine No. 805; but it is indispu table that whatever was done, and whenever done, was done by Kingsley alone, and Milton does not know even when the equipment began. It is Kingsley's reduction to practice, unless it is the embodiment of the ideas of Milton communicated in some manner to Kingsley. Milton had no direct communication with Kingsley between the trial of No. 810 on the 13th of February, 1893, and the 1st of April, 1893, when Kingsley's application for a patent was filed, embodying the new features of the equipment of No. 805. It was not communicated by Milton to any person prior to the last of February, for he did not conceive this invention until about the first of March or last of February, and from that time on to the filing of Kingsley's application he had no direct communication whatever with Kingsley upon any subject. It is strenuously claimed by counsel for Milton, nevertheless, that there was a communication of the inventive ideas, which Milton contends were his own, to Kingsley through Johnson. On this hangs the case of Milton. So far the case stands thus: Kingsley filed his application for a patent first, and thus shows himself indisputably to be in possession of the intellectual conception of this invention on the 1st day of April, 1893. The reduction to practice is under Kingsley's direction exclusively. He is now in the position of a defendant in possession. The burden of proof is upon his opponent to show, not only that he at some time had the idea, but that he had it first, and also that this idea, once exclusively his, was actually communicated to Kingsley; otherwise he can take no benefit from the reduction to practice. It will not do merely to raise a doubt upon this point. There must be a reasonable preponderance of evidence in order to overcome the presumption of right arising from the state of one in possession. (Soley v. Hebbard, C. A., D. C., Jan. 7, 1895; post,; 70 O. G., 921.) Here there is little that is satisfactory in the record. There is testimony tending to show that Milton made a rude sketch of a sectional view of the clay pipe mounted upon a pair of water-pipes; that he handed this to Johnson; that Johnson made a sketch like it and a better one; that Johnson took his own sketch to Kingsley's office one morning; that Milton met him there and saw Johnson there with the sketch, and that Johnson left this sketch upon Kingsley's table. Kingsley says he never saw it. Kingsley was not present when Milton and Johnson were at his office on this occasion, and the testimony indicates that he was at that time in Baltimore arranging for the equipment of engine No. 805, embodying this invention. No witness testifies without reservation that this sketch of Johnson's was left upon Kingsley's table, and if not left there is no proof whatever of any communication of the invention from Milton to

H

Kingsley. Here there are two defects in the testimony: First, the time at which this sketch was made, while testified to by Johnson and by Milton, is not fixed by any event the time of which is certain, nor is there any date in the record at this point which enables me to find as a fact whether it occurred before or after Kingsley had given full directions for the equipment of engine No. 805. Again, whatever the time of the making of this sketch, there is no evidence upon which the fact may be found that Kingsley ever saw it.

The origin of this invention must be found as a fact from this record, and for want of any proved communication of the invention by Milton to Kingsley it must be held that the ideas embodied under Kingsley's direction were not those of Milton. Certainly before it can be found that Kingsley wrongfully appropriated Milton's ideas there must be fact and necessary inference for its support, and these are wanting in this record. Notwithstanding, therefore, the very able argument of the learned counsel for Milton in his behalf, the decision of the Examinersin Chief must be affirmed.

EX PARTE BLESSING.

Decided April 22, 1895.

ABANDONMENT UNDER RULE 171.

71 O. G., 1027.

Where it appears that at no time while the case has been before the Office has it been placed by the Examiner in condition for appeal to the Examiners-in-Chief upon its merits, Held that although the action of the appellant has been irregular the case has not become abandoned under second paragraph of Rule 171. ON PETITION.

STEAM HEATING AND POWER SYSTEM.

Application of James H. Blessing, No. 74,610, filed October 19, 1882. Mr. Charles E. Foster for the applicant.

SEYMOUR, Commissioner:

The Examiner holds that this application has become abandoned under the second paragraph of Rule 171, because no action has been taken by the applicant since June 10, 1884, such as the condition of the case demanded. Upon examining the Office actions, however, in this case I find in the Examiner's letter of September 7, 1892, the following:

This application has been again considered in view of the amendment filed July 15, 1892. The idea that pipe d is in fact a part of the "high-pressure system," constituting a continuation of the supply-pipe c, being for the first time definitely stated in the specification, the merits of the invention can now be intelligently considered. In the same letter the Examiner raised formal objections, held that the claims must be rejected, and informed applicant that—

final action will be given as soon as the application shall have been placed in condition therefor.

In the following month the applicant replied in an argument. January 10, 1893, the Examiner withheld action on the merits because "no request for a reconsideration is made." On January 6, 1894, the Examiner notified applicant that amendments filed November 27, 1893, and December 20, 1893, were denied admission because the application had become abandoned. From this repeated ruling petition is taken to the Commissioner.

It appears that at no time throughout the twelve years during which this case has been before the Office has it been placed by the Examiner in condition for appeal to the Examiners-in-Chief upon the merits. The main contention has been upon matters that would not now be insisted upon until patentable substance was found. It is thought that it is not clear that the application has become abandoned by the irregular action of the applicant. The petition is, therefore, granted, and the Examiner is directed to give a full examination upon the merits, as required by present Rule 64.

NORTHALL v. PAINTER v. BERNARDIN.

Decided March 23, 1895.

71 O. G., 1159.

1. INTERFERENCE-EMPLOYER AND EMPLOYÉ—Original INVENTOR.

Where an employé made a device under the direction of his employer, who applied for a patent, and received an allowance, with the knowledge of the employé, who made no suggestion that the device embodied his invention, Held that the employer was the original inventor.

2. SAME

IRRELEVANT TESTIMONY-EXPUNGING AND EXCLUDING FROM RECORDS. Where the record abounds in improper remarks, long statements touching the conduct of counsel and witnesses, imputations of fraud, perjury, and bribery, which are not proof and are not proper parts of the record, Held that such matter should have been expunged before printing, and would have been excluded upon motion. (Smith v. Elliott, 9 Blatch., 400, 407.)

3. SAME-SAME-SAME.

Where the record is unnecessarily voluminous from the method of examination adopted, Held that the Office should be burdened with the reading of additional and wholly irrelevant discussion of other matter of the kind alluded to is intolerable, and the insertion of such things in the record cannot be too strongly condemned.

APPEAL from Examiners-in-Chief.

BOTTLE-SEALING DEVICE.

Application of Wm. H. Northall filed March 31, 1893, No. 468,524. Application of Wm. Painter filed January 16, 1893, No. 458,549. Application of Alfred L. Bernardin filed July 21, 1892, No. 440,790.

Mr. Wm. H. Gudgel for Northall.

Mr. Wm. C. Wood for Painter.

Messrs. Butterworth & Dowell for Bernardin.

SEYMOUR, Commissioner:

In this case Painter and Bernardin appeal from the decision of the Examiners-in-Chief awarding priority of invention to Northall on the following issue:

A metallic bottle-sealing cap, having its lower edge adapted to be pressed into contact with a locking-shoulder, and provided above the said edge with a circumferential outwardly-projecting rib or head for engagement by the removing-tool.

In 1891 the Bernardin Bottle Cap Company was engaged in the manufacture of bottle-sealing devices of tin, differing from that of this issue, one form consisting of a collar about the neck of the bottle and a tin cap covering the top, the tin top and the collar being connected by tin strips. Bernardin was the principal owner and managing officer of the company and Northall was foreman of the tool-room and worked under Bernardin's direction. Painter has no connection with this company, but was connected with the Crown Cork and Seal Company, of Baltimore, Md. In the view I take of this case he cannot prevail, by reason of his delays and inactivity for a year, between his alleged conception and his application, and his appeal is, therefore, dismissed.

The cap which the Bernardin Company was then manufacturing was unsatisfactory, and in the latter part of February Bernardin learned that a better and simpler device had been put on the market by the Crown Cork and Seal Company. This was regarded as a matter of great business consequence to the Bernardin Company. Early in the year the company talked about going into the tinware business, and Charles Hart, of Brooklyn, was engaged to inform the company what kind of presses and tools were required for that purpose. Northall thought that this might lead to his separation from the company, for he knew little about the tinware business, and the new Baltimore device tended to the same thing. Bernardin at that time was closely considering a corrugated bottle-head and also a perforated bottle-cap, and on April 16, 1892, he filed an application in the Patent Office covering such a device of his own invention. On that day he was in Washing. ton upon the business of his application. While there he ascertained from his attorneys that the application for the corrugated bottle-head and for the perforated cap was not allowable. Moreover, it was too hard to get the bottle-cap off and too expensive to make. He was very much discouraged. Upon his return to Evansville it became apparent that a new and better cap would have to be found or the bottle-sealing business of the company would have to be abandoned. Soon afterward the construction of the bottle-cap, which is the subject-matter of this interference, was begun by the Bernardin Company, and the question is whether Bernardin or Northall originated it. The facts derived from undisputed testimony will be considered first.

After a conference between Bernardin and Northall Bernardin directed Northall to make a roll and a tool for beading the caps, and this Northall did. About April 25, 1892, a few caps were made with