FISHER, Acting Commissioner: This is a petition from the action of the Examiner in refusing to admit a certain affidavit setting up a state of facts seeking to overcome a foreign patent cited as a reference and made and offered by the applicant. The applicant is a foreigner, and the affidavit was made abroad before the United States vice-consul general at Paris, France. The question of the sufficiency of the affidavit has not been raised, and this, if the affidavit be admitted, is a question for the Examinersin-Chief. The Examiner's ground for refusing the affidavit is that it does not make a showing of facts, as required by Rule 75, that the invention was completed in this country before the date of the German patent to Müller, upon which Grosselin's application was rejected. He further contends that the "affidavits * supporting or traversing refer ences" of Rule 76 mean the same affidavits as those of Rule 75. The position of the applicant is that Rule 75 is for the sole purpose of setting forth when a foreign patent, etc., is or is not a bar to the grant of a United States patent and has nothing to do with the right of an applicant to present by way of affidavit any facts which he considers to be pertinent to show that the foreign patent is not a proper reference. I do not think that the affidavit of Rule 75 means necessarily the same affidavit as that of Rule 76. The latter rule is a general one and the affidavits therein referred to include not only the special affidavit provided for by Rule 75, but all other affidavits "supporting or traversing references or objections." The affidavit in question sets up a state of facts which tend to show that the affiant completed the invention before the date of the reference, and therefore is unquestionably one traversing a reference, and in terms, consequently, comes within the provisions of Rule 76. Rule 75, however, provides that the facts shall show a completion of the invention in this country before the date of the foreign patent. The affidavit offered complies with the general provisions of Rule 76, but fails to comply with the no less important and essential specific provisions of Rule 75. The Examiner was therefore right in refusing to admit it. The petition is denied. LOEWER v. Ross. Decided July 6, 1896. 76 O. G., 1711. 1. INTERFERENCE-REDUCTION TO PRACTICE. Although a device was not commercially perfected and did not do as efficient work as later devices, yet, as it showed every feature of the invention m contro versy and was adapted to perform the work for which it was intended and actually did such work, it is Held that such a device was a reduction to practice. 2. REISSUE-RIGHTS OF PARTIES ARISING PRIOR TO APPLICATION for Reissue ABANDONMENT. Where, after the issue of an original patent and before an application for the reissue of the same, it was shown that other parties were using the subject-matter not claimed, Held that the patentee has abandoned his right to a reissue to claim such matter by his laches in not applying for the reissue before the rights of other parties accrued. 3. Same—SamE—INFRINGEMENT. In determining the question of rights intervening after the grant of a patent and before an application for a reissue the Office does not decide whether any of the claims of the original patent are infringed. The question of infringement is not involved. APPEAL from the Examiners-in-Chief. SOLE-TRIMMING MACHINE. Application of Henry Loewer filed July 21, 1893, No. 481,128. Reissue application of Simon Ross filed March 31, 1894, No. 505,981. Mr. George B. Selden and Mr. John D. Hyer for Loewer, (Mr. R. G. Dyrenforth, of counsel.) Messrs. Wood & Boyd and Mr. James L. Norris for Ross. FISHER, Acting Commissioner: This is an appeal by Loewer from the decision of the Examiners-inChief awarding priority of invention to Ross on the following issue: 1. In a rounding-machine, the combination with clamps for holding the stock, and a pattern, of a stock-gage and a pattern-gage adapted to respectively bear against the stock and the pattern. 2. In a rounding-machine, the combination with clamps for holding the stock, and means for holding the pattern on the same center as the stock, of a stock-gage and a pattern-gage adapted to respectively bear against the stock and pattern, and means for adjusting the pattern-gage to the pattern. Loewer's application was filed July 21, 1893. Certain claims of this application were rejected on two patents to Ross, No. 489,876, dated January 9, 1893, and No. 472,399, dated April 5, 1892. Loewer filed affidavits to overcome these references, and Patent No. 472,399 was waived as a reference; but the Examiner put Loewer's application in interference with Patent No. 489,876. Upon a motion duly made by Loewer that this interference be dissolved, on the ground that no interference in fact existed, the Primary Examiner on May 26, 1894, dissolved the interference. Prior to the granting of this motion Ross filed an application for a reissue of his Patent No. 472,399, containing the claims which are involved in the present interference. The gist of the invention which is the subject-matter of this controversy is a guide for properly holding and gaging blanks of leather for shoe-soles, so that when the edges of the blanks are brought against the revolving cutter of the lathe the desired shape and size of the soles as determined by the pattern will be turned or rounded. As expressed by the issue, a guide of any shape or kind will answer if it consists of clamps for holding the blanks, a pattern, a stock-gage, and a patterngage adapted to bear against the stock and pattern, respectively. The second count of the issue adds means for adjusting the pattern gage to the pattern, so that the amount of material to be cut from the blauk can be varied with the size of the sole. The object of this invention is to center the stock or blanks in the clamps-that is, to aline the stock longitudinally and laterally-so that the cutter will operate on the stock to shape it accurately to the pattern. Ross's preliminary statement sets up as the date of conception of the invention April 15, 1891; disclosure, June, 1891. No model was made. The working drawing was made during the month of July or August, 1891, and the invention was embodied in a full-sized machine during the month of August, 1891. A second machine was put in a shoe factory during the month of November, 1891. Ross testifies that he commenced on the drawings for the invention in controversy in May, 1891, and the last of these drawings were made as late as July or August, 1891; that shop-work was commenced on the first machine on September 1, 1891. The complete machine was tested on September 7, 1891, and successfully rounded soles. Busell and Miller corroborate Ross as to the making of the drawings and the tests made on September 7, 1891. Miller states that while the rounding was perfect, in pressing the soles in position the pattern slipped off the sheet-gage and Ross said it was too light. It was afterward replaced by a heavier gage, and one or two lots of soles were then rounded, when Ross thought the machine worked well enough and stopped further work on it. Hettich, the foreman of Ross's factory, had charge of the building of the first machine, and saw it tested September 7, 1891. He also states that at this test it developed that the clamping-plates of the gage were too light and heavier plates and guards were made; that on September 14, 15, and 16, 1891, some minor changes were made in the guide and clamping plates. The machine as thus changed was set up in November, 1891. It was contended on behalf of Loewer that there is a discrepancy between the dates set up in the preliminary statement of Ross and the dates in this testimony. It is true that the dates do not exactly correspond in all particulars, yet it is thought that the discrepancy is not serious, and the discrepancy seems to be satisfactorily explained by Ross and his witness Harmon. The preliminary statement was made from memory, and it was not until the testimony was taken that the shop records were found by Harmon and Ross, from which Ross obtained the dates given in this testimony. From the proofs and exhibits it is held that Ross has proved that he made drawings of the invention in July or August, 1891, and finished an operative machine embodying the invention in controversy by September 7, 1891. It is also contended on behalf of Loewer that this machine, as tested September 7, 1891, was merely a model or an experimental machine, While the machine at this test showed that it was weak in some parts, yet it embodied the invention and successfully rounded soles, and what minor changes were made afterward did not involve invention, but were such changes as the mechanic would naturally make to overcome the obvious defects. Loewer being the junior party, the burden is on him to show that he reduced the invention to practice before Ross, or, if his reduction was subsequent to Ross's, that at the time Ross entered the field Loewer was taking steps to reduce the invention to practice and from this time on used reasonable diligence in so doing. Loewer in his own behalf testifies that in 1889 a machine for round. ing soles was constructed for him by Leary. This machine is known in this case as the "1890 machine." He himself constructed the exhibit 1890 blank-guide during the months of December, 1890, and January, 1891. This blank guide for use on the 1890 machine was seen in January, 1891, at Leary's shop by W. F. Morse, a mechanical engineer and draftsman. Palmer, who is the present superintendent of the Machinery Construction Company, and was superintendent of the Rochester Last. ing Machine Company in 1891, states that this machine was moved from Leary's shop to the Lasting Company's shops for Morse to take apart and make drawings for a new machine. He saw this machine and a blank-guide in February, 1891. He identifies the 1890 machine and the 1890 blank guide as the ones he saw at that time. Cheney, a machinist who was in the employ of the Lasting Machine Company during the year 1891, also identifies this machine and guide as those he saw in his company's shops in February. 1891. Morse states that this machine and guide were in his office in the building of the Rochester Lasting Machine Company during February, 1891. Hatfield, an inventor and expert and manufacturer of shoe machinery, saw this machine and blank-guide in operation on July 3, 1891, and in answer to question 21 and cross-questions 137-146 fully describes the operation of the machine and guide. Loewer states that the soles cut on this machine at this time were sent to Brooks Brothers, shoe-manufacturers. Loewer says that upon the completion of this 1890 machine he wanted. a better machine "in design and shape," and that he employed Morse to do the drafting for him. Morse corroborates this statement, and says that the 1890 machine with the 1890 blank-guide was sent to his office to be taken apart and a new machine constructed. This machine came into his office in February, 1891. It took him about four months from this time—that is, until June, 1891-to construct this new machine, which is known in this case as the "Harding machine." Palmer, an employee of the Rochester Lasting Company during 1891, upon referring to the company's ledger, states that from June 9 to August 11, 1891, said company did work for Loewer on a sole-rounding machine, and that Loewer's exhibit-photograph of the Harding machine shows the machine on which work was done, and that this machine was operated during the summer of 1891. Scheibe, of the firm of Stephen & Scheibe, pattern-makers, commenced patterns for this machine on the 1st of May, 1891, and finished them July 12, 1891, with the exception of some slight changes. Cheney did work on the Harding machine during June, July, August, and part of September. Loewer employed Hatfield to superintend the construction of a blank guide to be applied to this Harding machine, and in giving him instructions about this new guide told him that what was wanted was a guide to be connected to the machine, but that he should embody in this new guide the features of the brass blankguide on the 1890 machine, "the exhibit 1890 blank guide." Hatfield employed Scheibe to do the pattern-work, and a wooden blank-guide was made not later than September 11, 1891. Cheney helped attach this guide to the Harding machine. The guide was practically operated on this machine and soles rounded by it were located by this wooden blank-guide, which was drawn up by means of cords over a pulley by a treadle. From this wooden guide W. F. Morse made working drawings for patterns, and his brother, Levi E. Morse, made a tracing on September 28, 1891, from which "Loewer exhibit blue print" was made. Hatfield furnished the drawings to Scheibe, from which the latter made patterns September 30 and October 1 and 2, 1891. From these patterns a metal guide was made, which Palmer and Cheney state was finished by October 13, 1891. This metal guide is known as "Loewer's exhibit folding guide" and was the one from which Loewer's present application was prepared. This guide was also applied to the Harding machine and was operated and tested satisfactorily, a number of soles being successfully rounded by it. These soles were for Harding & Todd, for Brooks Brothers, and some were probably for Curtis & Wheeler, shoe-manufacturers. This guide was operated a number of times to cut stock for Harding. This folding guide was on the Harding machine when it was sent to the Genesee Shoe Company, where it gave satisfaction. Loewer, however, was not satisfied to stop with this guide, but he made a fourth guide, exhibited in this case as "Harding machine sliding blank-guide." From the testimony it does not appear exactly when this guide was made, but probably before February, 1892, when it was successfully operated on the Harding machine in the shops of Harding & Todd. "The exhibit 1890 blank-guide" is before me, aud after a careful examination of it and a review of the testimony I am led to believe that this guide contains the gist of the invention in controversy, and this notwithstanding it was not intended to be permanently attached to the machine, but in use it was to be held up to the machine to center and gage or guide the blanks, and after this it was taken away from the machine. This guide, taken in connection with the 1890 exhibit |