parties the plates are supported between the finishing mechanism and the cooling means, so that as the plates are conveyed from the finisher to the cooler they are free from uneven strains and are not distorted from the form imparted thereto by the finisher.

The interference turns upon an issue of fact. Voluminous testimony was given, which it would serve no good purpose to here review. We will content ourselves with a statement of conclusions. It is unnecessary to pursue Wood's case further than was done by the tribunals below. He was accorded by each January 15, 1906, as a date of conception of the invention. This conservative finding is not even questioned by appellant. We may, therefore, let Wood's case rest with this date, since it cannot be questioned that his working drawings of that date, from which his second machine was built, disclosed a complete conception of the invention of the issue. Whatever conception Wood may have shown in his first machine or by other evidence we need not consider.

We now come to MacConnell's case. Does he overcome Wood's date of January 15, 1906? It may be inferred from the testimony that MacConnell had a nebulous idea of some sort of a cooling device, but his conduct forbids the conclusion that he had any formulated plan. In the winter of 1905–1906 he built a machine for the Philadelphia Press, a photograph of which is in evidence. While the machine shows a conveyer by which the plates were carried from the finishing mechanism to a point of delivery, it not only possessed no cooling device, but the plates were manually taken from the conveyer and cooled by dipping them in a tank of water, a method concededly old in the art.

On December 7, 1904, MacConnell applied for a patent for a machine which disclosed a device substantially the same as the Philadelphia Press machine. True, he claims that when his application was made he disclosed the present issue to his attorneys, but the attorneys were not put upon the stand to corroborate this statement, and the application itself is strong evidence of what was in his mind on that date. But it is contended that it was his intention to attach the cooling device to the Philadelphia Press machine after its installation. Ericsson, an employee of the Philadelphia Press, testified that MacConnell, in January, 1905, gave him

a sketch that provided a spray, that is, the plate was to be sprayed as it turned over the conveyer, in a half circular arrangement he had drawn, a half cylinder, showing a water trough at the bottom to take up the surplus water and a waste pipe at the extreme end to take the water away. That sketch he gave me and to the best of my recollection I took it down to Mr. Townsend to show him what we were going to get.

Townsend was the manager of the Philadelphia Press, and later had the machine discarded as unsatisfactory. He would certainly

have known if an agreement existed at the time of its installation to subsequently attach a cooling device, or if Ericsson showed him a sketch; but, as in the case of the attorneys, he was not put upon the stand. The unexplained failure to produce these very material witnesses irresistibly leads to the inference that their testimony would have been unfavorable.

Having this evidence within his control, and not producing it, it must be presumed that it was unfavorable to his case. (Huff v. Gulick, C. D., 1912, 488; 179 O. G., 579; 38 App. D. C., 334.)

A witness, Ruwell, who constructed the Philadelphia Press machine, testifying ten years after the event, makes some indefinite statements of MacConnell's idea to attach a device for cooling the plates by means of a spray while passing over the conveyer, but this evidence, when given the full credit to which it is entitled, amounts only to an indefinite idea in the mind of MacConnell. The fact remains that the Philadelphia Press machine was delivered on January 26, 1906, eleven days after Wood's date, without the device of the issue, and the finished machine is strong evidence of what was in MacConnell's mind on and prior to that date.

Wood constructively reduced the invention to practice by filing his application for a patent April 6, 1906. MacConnell actually reduced to practice by the completion of a machine in December, 1906, or early in January, 1907. MacConnell was the junior party, and has failed, we think, to overcome Wood's case.

The decision of the Commissioner of Patents is affirmed, and the clerk is directed to certify these proceedings as by law required. Affirmed.

[Court of Appeals of the District of Columbia.]

LUCKETT V. STRAUB.

Decided February 4, 1918.

250 O. G., 999; 47 App. D. C., 379.

1. INTERFERENCE-PRIORITY.

The evidence reviewed and Held that since L. conceived, disclosed, and reduced the invention to practice prior to the earliest date of conception alleged by S. priority should be awarded to L.

2. SAME RIGHT TO MAKE THE CLAIM-QUESTIONS NOT RAISED IN THE PATENT OFFICE ARE NOT BEFORE THE COURT.

The question whether L.'s construction embodies the issue not having been raised in the Patent Office, Held that this question is not before the court; but it was noted that L.'s garment responds to the terms of the issue.

Mr. D. P. Wolhaupter for the appellant.

Mr. P. B. Turpin for the appellee.

ROBB, J.:

Appeal from a decision of an Assistant Commissioner of Patents in an interference proceeding awarding priority to the appellee. The invention will be understood from a reading of the single claim, as follows:

A union undergarment having a permanently closed crotch, an opening extending partially across the back of the undergarment and down the outside of one of its legs and terminating short of the lower end of said leg, the latter being permanently closed below the said terminus of said opening, and means for detachably fastening the drop seat flap defined by said opening.

The earliest date of conception claimed by Straub was December of 1912. He filed August 11, 1913. Luckett's application was not filed until later.

It is clearly established that Luckett conceived and disclosed the invention in February of 1912, many months before Straub's entry into the field. Soon after this Luckett produced and showed to others a garment embodying the issue. Among those to whom he disclosed the invention was a Mr. Ellinghaus, a merchant tailor. Mr. and Mrs. Ellinghaus, on August 18, 1912, called at the Luckett home and were told that Mr. Luckett was lying down. Thereupon Mr. Ellinghaus, who knew Mr. Luckett well, went to Mr. Luckett's room and found that the only clothing he had on was the garment above referred to. Mr. Ellinghaus's attention was directed to it and Mr. Luckett demonstrated its intended functions. Thereupon Mr. Luckett dressed and went downstairs. Mrs. Ellinghaus fixes the date with great certainty. She testifies that a friend of hers was married at St. Francis De Sales Church, Maryland, on the 12th of September; that this friend called at the Ellinghaus home exactly one month prior to the wedding, and the fact was commented upon; that this call from the prospective bride was a subject of discussion the following Sunday between Mrs. Ellinghaus and Mrs. Luckett.

In the fore part of September of 1912 Dr. Dick, the family physician of the Lucketts, was shown the garment previously described, the result being that a partnership between the doctor and Mr. Luckett was formed for the purpose of exploiting the invention. The doctor advanced small sums of money and finally garments embodying the invention were made and placed upon the market.

We agree with the Examiner of Interferences and the Examinersin-Chief that Luckett reduced the invention to practice as early as August 18, 1912. While the record fails to disclose that any question was raised in the Patent Office as to whether the Luckett construction embodies the issue, the suggestion now is made that it does not because "the opening of the exhibit extends entirely across the back" of the garment. This question really is not before us, but we may observe that Luckett's garment responds to the terms of the issue, for

on one side of the back there is no opening; that is to say, in Luckett's garment a line may be drawn diagonally from the waist on one side to to a point below the crotch on the other. The opening on one side, therefore, is from the waist to a point below the crotch, while on the other side there is no opening at all. Obviously, this opening extends only partially across the back, within the meaning of the

count.

Having reduced his invention to practice, and not having attempted to conceal and suppress it but, on the contrary, having repeatedly disclosed it, there is no reason why Luckettt should not be given the fruits of his discovery. Appellee, citing Adams v. Murphy (C. D., 1901, 401; 96 O. G., 845; 18 App. D. C., 172), contends that Luckett should be required to prove his case beyond a reasonable doubt. We do not think so. The applications were copending and Luckett, in the circumstances of this case, merely has the burden of establishing his case by a preponderance of the evidence. In the case just cited there was a long period of delay "wholly unexplained," the evidence of reduction to practice vague and unsatisfactory, and the court naturally concluded.

that what was claimed to be reduction to practice amounted to no more than a mere abandoned experiment.

As we said in Schartow v. Schleicher (C. D., 1910, 402; 156 O. G., 800; 35 App. D. C., 347):

This is not a case where an incomplete invention has been put to one side until another has worked out the problem.

Neither is it a case of suppression or concealment of invention, as in Dieckmann v. Brune (C. D., 1911, 436; 171 O. G., 1258; 37 App. D. C., 399); Brown v. Campbell (C. D., 1914, 170; 201 O. G., 905; 41 App. D. C., 499). Rather is it a case where the evidence conclusively shows good faith on the part of the one who conceived and reduced to practice before the entry of his rival into the field, and whose conduct thereafter was free from suspicion.

The decision is reversed and priority awarded Luckett..
Reversed.

[Court of Appeals of the District of Columbia.]

MALCOM v. RICHARDS.

Decided April 1, 1918.

250 O. G., 1000; 47 App. D. C., 582.

1. INTERFERENCE-PRIORITY-GLARE-SCREEN.

Record reviewed and Held that priority was properly awarded to R.

2. SAME-SAME-REDUCTION TO PRACTICE.

Merely sticking a glare-screen on an office-window by means of a suctioncup is not a reduction to practice where the device is intended to be stuck on the windshield of an automobile in motion.

Mr. T. K. Bryant and Miss Florence King for the appellant.
Mr. Ellis Spear and Mr. Wm. F. Hall for the appellee.

SMYTH, C. J.:

The invention covered by this appeal may be shortly described as a light-absorbing member to be attached by means of a suction-cup to an automobile for the purpose of protecting the eyes of a motorist from the glare of the lights of an approaching car. There are four counts of the issue. It appears that Richards conceived the invention about July, 1914, and constructively reduced it to practice in October of the same year by filing his application in the Patent Office. His date of conception is conceded by Malcom, and there is, of course, no dispute about the filing date. He was diligent from the beginning. This, if not admitted, is not seriously denied by his opponent.

Malcom offered testimony tending to show that he conceived counts 1 and 3 in the spring of 1914, but he failed to establish actual reduction to practice prior to 1915. Under the law his own testimony on this point must be corroborated. (Sharer v. McHenry, C. D., 1902, 503; 98 O. G., 585; 19 App. D. C., 158; Petrie v. De Schweinitz, C. D., 1902, 534; 99 O. G., 1387; 19 App. D. C., 386; Flora v. Powrie, C. D., 1904, 636; 109 O. G., 2443; 23 App. D. C., 195.) He relies upon one Dietrich to supply the corroboration. All that Dietrich says is that some time about January or February, 1914, Malcom handed to him. some shields and asked him " what he thought of them," and that Malcom said "it was a dimmer for a light;" that he stuck it on the window and that "it had a little rubber attached to it." When asked how Malcom stuck it on the window, the witness replied:

*

I do not know just exactly * I did not look at it very closely but he stuck it on the window and there it was. I suppose it was round.

Assume that the device he was speaking about was the one involved in this interference, the sticking of it upon a window by some means unknown to the witness was not a reduction to practice. It might stick to a window but not to the wind-shield of an automobile in motion, where the jar of the machine might seriously affect its adhesiveness. In other words, what would stick to a window at rest might not adhere to a wind-shield in motion. To establish successful reduction to practice generally requires a test under actual working conditions. (Sherwood v. Drewsen, C. D., 1907, 642; 130 O. G., 657; 29 App. D. C., 161; Wickers v. McKee, C. D., 1907, 587; 129 O. G., 869; 29 App. D. C., 4.)

Malcom's constructive reduction to practice by filing his application in the Patent Office in October, 1915, avails him nothing, for he failed to show by any one outside of himself that he had been at all diligent between the date on which he claims conception in 1914 and the filing of the application.