We feel ourselves constrained wholly to discredit the story of the appellee, Chase. His preliminary statement, which should have been made and which we must presume was made with due care and deliberation, is undeniably false in the essential statement of the time when his alleged invention was reduced to practice. There was no justification for that statement. He had already procured his patent and he should have known the true data upon which that patent was based. He had in his possession the memoranda upon which he fixed the date of the interview (July 2, 1891) at which, as he claims, he communicated his invention to La Flare and Wells and directed them to reduce it to practice, and with the knowledge in his possession to be derived from those memoranda, if he did not have it otherwise, it was recklessness or worse for him to aver under oath that he had made in May the reduction to practice which his own testimony shows conclusively could not have been made until after July 2. If we were to apply the maxim falsus in uno falsus in omnibus, we might stop here and resolve the case at once against the appellee.

But there is another remarkable feature of this case, the marvelous testimony of the witness Nelson, who is able after the lapse of eleven years to remember the minutest details of the drawing or casual sketch of a matter in which he never had an interest of any kind and where there does not appear to have been anything to excite an unusual effort of memory. Such phenomenal recollection of details as he manifests is not an impossibility, but it is extremely improbable, and in the absence of explanation of some kind we are compelled to disregard such testimony.

If the appellee had in the year 1883 the germ of the idea which was reduced to practice in the shops at Elsdon in 1891, and there is some reason to question whether the idea was the same, it is very evident that nothing practical came of it during the intervening years and that it had been relegated to the shadowy realms of forgotten thoughts. Was the idea revived again at Elsdon? There is no proof whatever that it was revived, if at all, before July 2, 1891, and the proof is ample that La Flare had conceived the idea long before that, had explained it and exhibited designs of it to others, and had solicited permission to put his idea to the test of practical experiment. When on July 2, 1891, Chase communicated his idea, as he claims, to La Flare and Wells, he admits that they were familiar with it, and yet he had not disclosed it to them or to any one else at Elsdon or to any mortal man other than his witness Nelson at Boston in 1883. When they expressed to him their familiarity with the idea, he asked no question and sought no explanation, as would naturally have been done on such an occasion. His conduct in taking away the sketch, as he says he did, to his house in Boston is not without liability to suspicion. If the idea was that of Chase and the sketch was intended to be the guide of those to whom

he gave directions for its reduction to practice, it should have been left in the shops and not taken away. The explanation for taking it to Boston, which was, as it is claimed, to have some drawings made from it, for what purpose it does not appear, is not satisfactory. If it was designed to submit it to a draftsman, it is not explained why it was not done at the appellee's first visit to Boston after July 2, 1891. The whole course of the appellee with regard to his alleged invention is peculiarly open to suspicion, while, on the other hand, the conduct of the appellant seems to have been straightforward throughout.

We think that the testimony fully and completely establishes the fact that if the appellee conceived the idea of the invention in controversy in the year 1883 it was abandoned by him and never reduced to practice, and that if it was again revived by him in 1891, which we regard as not established by the testimony, he had been anticipated by the prior conception of the appellant in 1890 and his disclosure of it to several credible witnesses. In our opinion the testimony is ample to show that the interview of July 2, 1891, had reference to the idea and the invention of La Flare and that the reduction to practice thereafter was the embodiment of La Flare's idea and should be held to inure to his benefit.

We must conclude that there was error in the decision of the Commissioner of Patents in this case, and we concur with the conclusions urged by the Examiner of Interferences and the Board of Examinersin-Chief to the effect that the applicant, La Flare, is entitled to priority of invention. We shall therefore reverse the decision and direct a certificate of the proceedings in this court and of this decision to be returned to the Commissioner of Patents, to be entered of record in the Patent Office, as the law directs.

Claims 1 and 2 of Letters Patent No. 447,064, granted February 24, 1891, to Asahel M. Shurtleff, for an improvement in atomizers, reviewed in connection with the prior art and Held not to cover a patentable invention.

2. INVENTION—ANALOGOUS USE.

A claim that an older device was not designed for the particular use to which a new device is peculiarly adapted is no answer to the fact that the older device would perform the same functions.

Mr. James H. Lange for the complainants.
Mr. Arthur v. Briesen for the defendant.

ALDRICH, J.:

In this cause the complainants stand on the first and second claims of their patent, which are:

1. In an atomizer, a vial and a cap or stopper, combined with a nozzle secured directly to said cap or stopper and adapted to be applied in the nostrils and in open communication with the interior of said vial, a liquid-tube extending down into the vial, atomizing-orifices contained within said nozzle, and an air-tube provided with an air-forcing device, all constructed and arranged to operate substantially as described.

2. In an atomizer, a vial and cap or stopper therefor having its top formed with a seat for the nozzle, combined with a liquid and air tube, atomizing-orifices in said tubes, and a nozzle fitting said seat, substantially as described.

The device which the complainants say amounts to patentable invention consists in securing known atomizing parts directly to a cap or cover of a vial and adapting the whole for use as an atomizer for throwing spray into the nostrils.

It would seem that the functions and ideas embodied in the complainants' atomizer, aside from the rigid attachment, were all known in the prior art, and especially disclosed in the German patent of 1886 known as the "Osterwald patent" and the American patent of 1881 known as the "Heine patent." This being so, the combination which results from securing the various parts directly to the cap or cover of the vial was not, under the doctrine of Consolidated Elec. Mfg. Co. v. Holtzer, (C. D., 1895, 476; 72 O. G., 415; 67 Fed. Rep., 907,) patentable invention.

The claim of the complainants that the older atomizers were not designed for the particular use to which their device is peculiarly adapted is no answer (Potts v. Creager, C. D., 189.5, 143; 70 O. G., 495; 155 U. S., 597, 606) to the fact that the older devices would perform the same functions. This doctrine was recently applied to Wright & Colton WireCloth Co. v. Clinton Wire-Cloth Co. by the Circuit Court of Appeals for this circuit. (C. D., 1895, 519; 72 O. G., 1046; 67 Fed. Rep., 790, 792.) It follows, therefore, that the bill must be dismissed, with costs, and it is so ordered.

[Court of Appeals of the District of Columbia.]

SHELLABERGER v. SOMMER et al.

Decided February 3, 1896.

74 O. G., 1897.

1. INTERFERENCE-SHELLABERGER-SOMMER-WIRE FENCE-PRIORITY. Shellaberger having proved reduction to practice in the spring of 1888 is awarded priority of invention over Sommer, whose earliest conception is September, 1888, and reduction to practice 1890.

2. SAME-FAILURE TO PRODUCE SKETCHES, ETC.

While the failure to produce the original sketches, specimens of the device made, or the machine upon which it was made is always the subject of adverse criticism, yet it may be so explained that priority may be awarded to the party who does not produce such evidence to show reduction to practice.

APPEAL from the Commissioner of Patents.

Messrs. Offield, Towle & Linthicum, Messrs. R. S. & A. P. Lacy, and Mr. Charles E. Brock for the appellant.

Mr. H. H. Bliss and Mr. W. V. Tefft for the appellees.

ALVEY, J.:

This is an appeal brought into this court from the Patent Office from a decision of the Commissioner of Patents made upon an appeal to him in a case of interference. (C. D., 1894, 74; 68 O. G., 533.) The interference declared was between the claim of Shellaberger, the present appellant, and that of Peter Sommer, John Sommer, and Peter W. Sommer as to the priority of invention of a certain improvement in the make and structure of a wire fence.

The issue of interference as declared is as follows:

A wire strip consisting of border-strands and a parallel intermediate strand or strands which are connected by interposed zigzag mesh-wires at their angles by coils engaging corresponding coils in the strands, the intersection of two mesh-wires with the intermediate strand being arranged alternately at regular intervals.

For the trial of this issue there was a considerable volume of evidence produced and several exhibits filed. Upon careful examination the Examiner of Interferences, and, on appeal, the Examiners-in-Chief, concluded and held that the device or invention in controversy was fully shown to have been made and reduced to practice by Shellaberger, the present appellant, in the spring of 1888, and consequently that he was entitled to priority of invention over the Sommers, the present appellees, whose earliest claim of conception was in 1889. On appeal to the Commissioner of Patents in person these concurrent rulings were reversed upon the supposed ground that there was a failure of proof that any fence-strip of the kind in question was made earlier than that made by the Sommers, and therefore priority of invention was awarded to them.

The question involved is purely one of fact, and it largely depends for its proper solution upon the credit that may be given to the witnesses produced on the part of Shellaberger. The testimony of those witnesses was not deemed credible by the Commissioner of Patents, though there is nothing in the case that would appear to be sufficient in any direct way to impeach the varacity of the witnesses testifying for Shellaberger.

The application of Shellaberger was filed in the Patent Office on the 14th of August, 1891, and that of Peter Sommer, John Sommer, and Peter W. Sommer was filed April 24, 1890. In the preliminary statement of Shellaberger for declaration of interference it is alleged that he, Shellaberger

conceived the invention set forth in the declaration of interference on or about the 15th of October, 1887; that on or about the 1st day of January, 1888, he made drawings of the invention; that on or about the 15th of January, 1888, he first explained and exhibited the invention to others, and that he made a model, showing such

invention, on or about the 15th of January, 1888; that on or about the 15th of January, 1888, he commenced a series of experiments, aided by mechanics skilled in the construction of machinery, with a view to the erection of machinery to manufacture the strip embodying his invention; that the first attempt to erect such a machine proved unsuccessful, and that he continued to experiment until the 10th of July, 1891, when he commenced the erection of a machine which proved successful; that on or about the 15th of December, 1888, he reduced his invention to practice; and that, having demonstrated that the strip embodying the invention could be successfully manufactured, he applied for a patent on his invention of the date above mentioned.

He further states that since December, 1891, three machines have been employed in the manufacture of the invention. This statement is made under oath by Shellaberger.

As was properly said by the Examiner of Interferences, the issue framed relates solely to the fence itself and not to any machine for making it. If it be true that Shellaberger made the fence described in the issue in 1888, it is quite immaterial how he made it, whether by hand-power or by a machine; and if he and his witnesses are to be believed there remains no reasonable ground for doubt that he did make such fence at that time.

In the preliminary statement of the Sommers, made under oath, it is alleged

that they jointly conceived the invention set forth in the declaration of interference on or about the 1st day of September, 1888; that they made drawings of the invention on or about October 15, 1889; that on or about December 1, 1889, they first explained the invention to others; that no model of the invention in issue has been made; that they reduced to practice, or, in other words, made the fence on or about March 20, 1890, and that they have since manufactured the fence for use and sale.

It would appear, therefore, according to the allegations of the parties, that Shellaberger was the first to conceive the invention in issue, the first to make a drawing and to make an explanation of the invention to others, while the Sommers were the first to manufacture the article for commercial use and sale and the first to apply to the Patent Office for a patent for the invention, and but for the claim and case made by Shellaberger there could be no doubt of the right of the Sommers to receive a patent for the invention in issue upon the proof furnished by them; but upon this issue of interference, to be successful, they must overcome the evidence produced by Shellaberger as to priority of invention and reduction to practice.

The testimony produced on the part of Shellaberger appears to be of such circumstantial nature and supported by so many unimpeached witnesses that it is difficult to question its truthfulness and reliability. Including Shellaberger himself, there are no less than five witnesses who support the allegation of priority of invention and the fact of reduction to practice by Shellaberger before conception by the Sommers. The witnesses who prove these material facts are Shellaberger himself, his son, Edward Shellaberger, Milligan, Clarke, and Hall, and they all had the fullest possible means of knowledge and speak in the most positive and unqualified terms.