Inasmuch as the third clause of Rule 59 prohibits the introduction of new parties after testimony has been taken, and none has, I believe, been taken in this, it becomes important that this matter should be definitely disposed of before further proceedings are had. FREUND vs. KING. Interference. O. G., vol. xi, p. 2. APPEAL FROM THE DECISION OF THE BOARD OF EXAMINERS-IN-CHIEF IN THE MATTER OF THE INTERFERENCE BETWEEN THE APPLICATIONS OF FRANK W. FREUND, filed DecemBER 3, 1875, AND NELSON KING, FILED OCTOBER 2, 1875, FOR "IMPROVEMENT IN BREECH-LOADING FIRE-ARMS."-Decided December 27, 1876. Full credit must be accorded to the testimony of an unimpeached witness. The presumption that an invention which had been put into form several years before the filing of the application was an abandoned experiment is overcome by proof of an intention on the part of the inventor to obtain a patent. The same degree of diligence is not required of an inventor who has completed his invention as of one whose invention has not been reduced to practice. EDGAR SIMONDS, attorney for King. MASON, FENWICK & LAWRENCE, attorneys for Freund. DOOLITTLE, Assistant Commissioner: The subject-matter involved consists of The combination of hammer, breech of gun, and firing-pin, for half-cocking the gun in the act of opening and closing the breech when the hammer is down. The Examiner of Interferences held that Freund, the later applicant, was the first to conceive the invention in controversy, but that his efforts in its completion amounted to nothing more than abandoned experi ments. It appears from his testimony that Freund conceived this invention in December, 1869, and applied it to Sharps's carbine in January, 1870, that he has since tried it on several of Sharps's guns, and that it fitted on every one he tried. His brother corroborates these statements. F. A. Dammann testifies that at Denver, two years before the date of his deposition, which would carry it back to 1874, Freund showed him this invention applied to, and operated upon, a Sharps rifle. He thinks the hammer and firing pin shown him at the time of the examination were the same hammer and firing-pin which were used at the time mentioned. Freund also testifies that he commenced to make a wooden model of the invention in 1870, which was thrown aside, and that, in a visit to Washington in the spring of 1875, he made a hasty examination of the models in the Patent Office, but found nothing like his invention. King alleges that he conceived this invention in 1872, but the evidence shows that he did not apply it to a gun until the spring of 1875. The Examiner of Interferences held that from 1870 to December, 1875, was "a longer period of slumber upon an invention than is consistent with the use of due diligence." This may be true, but I am of the opinion that the Examiner did not give sufficient weight to the fact that the evidence in behalf of Freund does not show that his experiments were confined to the efforts made in 1869 and 1870. Freund's own testimony and that of Dammann show that he had in operation the invention subsequent to that time; and that in the spring of 1875, while his opponent was for the first time applying the invention to a Sharps rifle, Freund was examining the models in the Patent Office to see if the invention had been anticipated. Freund's testimony was poorly taken, is meager and unsatisfactory in detail, but at the same time, as it is unimpeached, it must receive full credit as far as it goes, and it goes to the extent of showing that this invention was completed by him prior to the conception of it by King, that the matter was not wholly abandoned, but that the intention to obtain a patent was kept alive up to the time the application was filed, and that the application itself was filed but two or three months subsequent to the filing of the application of King. The knowledge of the invention, from the time of King's conception and completion of the same until the filing of the application, had not been made public, nor the manufacture of it commenced. King delayed the completion of his invention for more than three years after its conception, and the filing of his application was still longer delayed. If Freund's invention was experimental, King's was also. The lack of diligence on the part of Freund, in view of the early completed state of the invention by him, was not such as showed merely an abandoned experiment, or the abandonment of a completed invention to the public. The delay consisted merely of a forbearance in applying for a patent. The following doctrine is applicable to the circumstances of this case: Lapse of time does not, per se, constitute abandonment. It may be a circumstance to be considered. The circumstances of the case, other than mere lapse of time, almost always give complexion to delay, and either excuse it or give it conclusive effect. The statute has made contemporaneous public use, with the knowledge and allowance of the inventor, a bar when it exceeds two years; but in the absence of that, and of any other colorable circumstances, we know of no mere period of time which ought, per se, to deprive an inventor of his patent. Russell and Erwin vs. Mallory (5 Fish. Pat. Cas., 641); Andrews vs. Carman (9 OFFICIAL GAZETTE, p. 1011). The decision of the Board of Examiners-in-Chief is affirmed. WARNER vs. ANDERS. Interference. O. G., vol. xi, p. 109. APPEAL FROM THE DECISION OF THE BOARD OF EXAMINERS-IN-CHIEF IN THE MATTER OF THE INTERFERENCE BETWEEN THE APPLICATIONS OF ERNEST P. WARNER, FILED AUGUST 28, 1874, AND GEORGE L. ANDERS, FILED JUNE 1, 1874, FOR "IMPROVEMENT IN PRINTING-TELEGRAPHS."-Decided January 15, 1877. The unsuccessful embodiment of preconceived ideas of an invention, afterward reduced to practice, and completed in substantially the form first attempted, although not constituting proof of invention, may be considered as evidence of the conception. The first to conceive of an invention must, in order to establish his right to a patent as against one who was first to reduce it to practice, use reasonable diligence in developing and perfecting the same. ALEX. L. HAYES, and HILL, ELLSWORTH & SPEAR, for Anders. DOOLITTLE, Acting Commissioner: The subject-matter at issue in this case, as defined by the Primary Examiner, and accepted by the parties, consists In printing-telegraphs having a step-by-step movement caused or controlled by an electro-magnetic escapement controlled by currents alternating in polarity, the combination of a type-wheel shaft, carrying a contact finger or arm, a series of finger-keys or circuit-breakers, and a segmental disk having a segment for and connected to each key and line and battery connection, substantially as described, so that the reversal of the current is automatically affected by the rotation of the finger or arm carried by the type-wheel shaft over the segmental disk. The Examiner of Interferences awarded priority to Warner, and the Board to Anders. The findings of both of these tribunals have been substantially the same, with but one exception, the Board excusing Anders's delay in completing his invention, so that the only real matter of difference between them is that of diligence. It appears that Warner had some conceptions of the present invention in May, 1873, and made some sketches about this time, which are introduced in evidence; in January, 1874, filed a caveat, and completed and operated the device on the 10th of March, 1874. This model was somewhat reconstructed; but it does not appear to have been changed in any material degree, and completed in the form filed with the application August 24, 1874. Anders, on the other hand, conceived of the invention in 1868, and at some time prior to June 22, 1869, embodied his ideas in the form of a device, which is introduced as Exhibit C. This, he admits, was not a success, from which, together with the fact that his then associate in business constructed two others upon the same plan, but which would not operate, it is fair to presume that he abandoned the same as a fruitless unsuccessful attempt to complete and adapt to use his ideas. Although this exhibit cannot be regarded as a reduction to practice of the invention, still it is evidence of conception. In the latter part of 1873, or early in 1874, he again took up the mat ter, and reproduced his former ideas in a somewhat changed or modified form. This was accomplished by the making of an instrument on the 16th of March, 1874, and practically testing the same on the 31st of the same month. Upon this state of facts it is necessary to determine whether Anders was diligent in reducing his invention to practice; otherwise Warner, though second to conceive of the same, being the first to actually perfect it, is entitled to the judgment of priority, under the rule of law that he who first reduces an invention to practice is entitled to a patent, unless another, who is first to conceive, was at the time using reasonable diligence in perfecting and adapting his invention. A careful reading of the testimony fails to disclose any reasonable ground for excusing the delay of nearly five years, which occurred in this case. It is not sufficient that the applicant was engaged in perfecting other inventions, unless it appear that it were impossible for him to devote at least part of his time to the development of the invention in dispute. But it does not appear that any endeavors were made, until after Warner had entered the field, to overcome or develop the defects found in the instrument (Exhibit C), which, it would seem, were indifferently known or understood by Anders himself. During the interval he obtained several patents, and, it is fair to presume, was in a situation to develop the present invention if he had been so inclined. His delay was at his own risk. Up to the time that Warner had completed his invention Anders's invention rested as an experiment. Under the circumstances I am convinced that Anders was not using that due diligence which the law requires of one who was first to conceive, and is contending against another who has completed the invention. The decision of the Board is reversed. LEWIS CUTTING. Appeal. O. G., vol. xi, p. 110. APPEAL FROM THE DECISION OF THE BOARD OF EXAMINERS-IN-CHIEF IN THE MATTER OF THE APPLICA TION OF LEWIS CUTTING, FILED JUNE 25, 1875, FOR AN " IMPROVEMENT IN CAN-OPENERS.". s."-Decided January 15, 1877. The substitution in a can-opener of one form of cutting-edge for another, without thereby producing a new combination or result as proof of invention, is not patentable. C. W. M. SMITH and GEO. W. DYER & Co., attorneys. DOOLITTLE, Acting Commissioner: Applicant's invention consists in an implement for opening cans composed of a cast-iron handle having two laterally projecting shoulders forming a fulcrum, all cast upon what the applicant terms a "sickleshaped" blade, said blade having one side beveled and the other straight. His claim is— As a new article of manufacture, a can-opener composed of a cast-iron handle with bolsters, and a steel sickle-shaped blade, all cast together, the sickle-shaped blade being beveled wholly on the right-hand side of its curved edge, as described and shown. The purpose of this beveling on one side only is said to be to enable it to cut a smooth circle around the top of the can. None of the parts, separately considered, are claimed to be new, per se. In the patent to John Willard, August 21, 1866, is described an instrument similar to Cutting's, with two exceptions: the handle and blade are made in one piece, and the latter is beveled on both edges, instead of one only. In the patent to G. C. Humphries, November 19, 1868, is shown a can-opener, the blade of which is beveled on one edge only. It is admitted on the part of the applicant, and shown in the references, that there is no novelty in attaching a blade to a handle by casting one upon the other. All that it appears applicant has done is to substitute one old form of cutting-edge for another without thereby producing a new combination or result as proof of invention, and, as in the case of Stimpson vs. Woodman (10 Wall., 117), "the change with the existing knowledge of the art involves simply mechanical skill which is not patentable." The decision of the Board is accordingly affirmed. A. JUNKER AND F. W. WOLF. Interlocutory Appeal. O. G., vol. xi, p. 110. APPEAL FROM THE DECISION OF THE PRIMARY EXAMINER IN THE MATTER OF THE APPLICATION OF ANTON JUNKER AND FREDERICK W. WOLF, FILED NOVEMBER 9, 1876, FOR "IMPROVEMENT IN APPARATUS FOR DRYING DISTILLERY-SLOPS."-Decided January 16, 1877. The mere fact that an article can be made upon an improved machine capable of general use, and not specially adapted for the production of this particular article, is not sufficient to establish such unity of invention as to warrant their being included in the same application. A. A. EVANS & Co., attorneys. DOOLITTLE, Acting Commissioner: This is an appeal from the action of the Primary Examiner requiring a division of the application. The alleged inventions consist of an apparatus for drying distillery-slops, &c., and the material produced as an article. It is evident from an inspection of the device that it is capable of being used for drying various materials, and is not specially adapted for producing the article named; at least there is nothing in |