2. SAME PRIORITY-NO RIGHT TO MAKE THE CLAIMS. Held that the tire-forming mechanism disclosed by Lister has no means for imparting to the fabric before its application a curvature of the outline of the core, as specified in the claims of the issue, and that Lister is therefore not entitled to make the claims. 3. SAME-SAME-SAME. When the application of one of the parties to an interference does not disclose the subject-matter of the interference, Held that this lack of disclosure is sufficient ground for an award of priority to the other party. (Cosper v. Gold and Gold, C. D., 1911, 387; 168 O. G., 787; 36 App. D. C., 302.) APPEAL from Examiners-in-Chief. MACHINE FOR MAKING TIRES. Mr. Seward Davis and Mr. Robert M. Pierson for Gammeter. CLAY, Assistant Commissioner: Gammeter, the junior party in the interference, appeals from a judgment of priority against him, rendered on the files, no proofs having been taken. His alleged date of the conception of the invention in issue was after the filing of the application of his opponent, Lister, and being under order to show cause why judgment should not be entered against him he undertook to show that Lister did not disclose the invention of the issue. The question of priority strictly has not arisen except in the sense that if one of the parties did not invent at all then the other must be the prior, because the only, inventor. The substantial contention of the appellant is that by reason of technical rules and rulings his invention has been taken from him and awarded to Lister, who never invented the thing defined by the claims at all. As to the question whether the scope of the claims may be inquired into on appeal under the provisions of Rules 130 and 122 or otherwise, it may be said at once that no proper rule can prevent a just adjudication of the rights of the parties. If, as a matter of fact, it is plain that Gammeter is the only inventor of the issue, and this fact appears from a proper interpretation of the claims, the construction put on the claims by the Law Examiner must, of course, be reviewed. The invention in issue is part of a machine for properly laying a sheet of fabric on a circumferential tubular core in the making of rubber-tire casings. It will be understood that such casings commonly comprise a main body portion composed of a number of layers of fabric laid one upon another and held together with a suitable binder, usually of rubber gum with which the fabric is impregnated. The object of the invention is to stretch and shape the fabricprior to its actual incorporation in the tire and also at the moment when it is applied to the core upon which the tire is being built. (Gammeter's specification, page 1, line 19.) The claims originated with Gammeter. He describes the "fabric shaping guide or shoe 100" in his drawing, Figure 1, as consisting of a single piece of metal "shaped to conform closely to the outer surface of the core," and says the fabric after passing over the small roller 28 and the large roller 30 slides over the guide and is thereby cupped to the approximate shape of the tire-section. The fabric is a strip of woven cloth cut on the bias, and the object of shaping, of course, is to so lay it on the core 4 that the part lying on the outer periphery is elongated and the parts lying on the sides are progressively contracted more and more as they approach the inner limit of the rim. It will be obvious that when the fabric is forcibly drawn onto the revolving core 4 it would normally approach the core in a straight line, touching at the tangency of a line from the periphery of the roll 30—that is, as shown, near the beginning of the shoe; but the shoe 100 prevents its touching the core at this point of tangency and holds it. off until it has been bent both longitudinally and laterally into a circular tubular shape, just as it must remain on the finished tirethat is to say, the fabric lying on the outer periphery of the shoe 100 must travel faster and be stretched more than the parts lying on the side of the shoe--and at the time the fabric reaches the farther end of the shoe it will have already assumed that shape into which it is literally cupped to the approximate form of the surface of the core. It will be at once clear that the machine has to do with the forming of a woven fabric and that the entire function of the shoe 100 is to stretch and form the fabric so that it is bent simultaneously in two directions and so that the central portion is elongated and the side portions contracted. It is important to observe that the fabric could not possibly pass from the roller 30 to the point at which it leaves the shoe 100 without the central portion of the fabric having traveled faster than the edges and side portions. In view of these facts there is no possibility of construing the claims in issue to read upon any device which does not manipulate a fabric so as to impart to it a curvature of the same general outline as the core, and this before its application to the core. The law is, of course, well settled that the claims should be construed as broadly as the state of the art will allow and that, as stated in Kirby v. Clements, (C. D., 1915, 163; 216 O. G., 1319; 44 App. D. C., 12)— we must give to claims the broadest interpretation which they will reasonably support, The reasonable presumption is that an inventor intended to * protect his invention broadly and, consequently, the scope of a claim in an interference proceeding should not be restricted beyond the fair and ordinary meaning of the words. The issue here is that of priority under the claims as drawn. But in the case at bar I agree with the contention of Gammeter that these claims cannot be read to cover the device of Lister at all. The only limitations in the claims which give them life are totally meaningless if it be attempted to read them on Lister's structure. In Lister's structure a series of cords are drawn through the guide B' directly on a tangential line after the trough-forming roll D2 to various parts of the core A. They touch nothing else until they reach the core, and they are not moved out of the straight line. A cord going to the outer periphery of the core A and being wound thereon must in the turn of the core travel a much greater distance than a cord going to the position indicated by the bottom of the roller A', for example. Unless it be supposed that the cords are under some kind of tension device, which allows them to be drawn onto the core at differential rates, sliding between the sheets of rubber, it is impossible that the Lister device would operate. On the scale of Lister's drawing the outer periphery of the core moves at a speed about one-seventh faster than the inner edge of the so-called "fabric" at the base of the roller A', and in a turn of the core the relative lengths of the cords would, in an ordinary-sized tire, be about as nine and a half feet to eight and a fourth feet-that is to say, a cord on the lower edge of the so-called "fabric " would have to be more than a foot shorter than the cord on the outer periphery. It therefore is plain that even if the series of cords used by Lister could be called "fabric," which I think they could not, there is in Lister's construction no means whatever to distort the fabric before it is laid upon the core. Indeed, the guide E shown by Lister has nothing whatever to do with any modification of the shape of the supposed fabric B. Lister describes it in a casual and purely incidental manner as a guide horn E to prevent the soft fresh rubber from sagging against the revolving core A until the desired point is reached. (Specification, bottom of page 4.) Lister makes no mention of any distortion of any fabric by any other means than the preliminary forming-rollers D' D', and it is important to observe that these, he says, give the group of cords a U shape "approaching the shape and size of the revolving core A,” by which he of course means nothing except that it is given a trough shape, and which, of course, is not the shape of the core A. When he says at the middle of page 4 that the threads and rubber sheets will be brought together in approximately the form which they will occupy on the revolving core and in the finished tire it is perfectly obvious that this is entirely an erroneous statement. There is no problem in forming the threads into a straight trough form. The problem is to form them into a circular trough. It is this function which is performed by the shoe 100 of Gammeter, and this function, it is perfectly plain, the so-called "guide " E of Lister cannot accomplish and was not intended to accomplish. Considering, then, the object, the function, and the operation of the device described by the claims, I think it plain that Lister can make none of the claims in issue. Specifically, he has no means for manipulating what is properly called a "fabric" in every one of the claims. He has no means for imparting to fabric or to anything else before application to the core of any curvature of the outline of the core, as called for by each of the claims except Nos. 4 and 5. I think the same structure is required by the words "convex" and "concentric" in claim 4 and the expression "surrounding a portion of said core and acting to cup the fabric" in claim 5. Lister has no means for holding the fabric out of contact with the core until it has been formed, as called for by claim 2. He has no guide-shoe concentric with the core, as called for by claims 10 and 11, and no means between the feed-roll and the core for shaping the fabric approximately to the shape it is to finally occupy, as called for by claim 12. As to claim 15, while it is questionable whether Lister's rollers A' could operate to smooth the fabric, this might depend upon the degrees of pressures used, and the terms of the claim are broad enough to cover Lister's device. Assuming that claim 15 is patentable, it must be awarded to Lister. It will be plain from the above discussion that Lister cannot make claims 38 and 39, added to the issue upon Lister's motion to amend, since even if Lister has what is properly a fabric his guide-shoe E has nothing whatever to do with shaping it, and it is, in fact, not、 shaped at all before being applied to the core, but is shaped by the core itself into the circular trough form. If the holding that Lister never made the invention in issue at all is correct, there would be no interference-no contest as to who made it first; but if the holding that Lister did not have the invention should turn out on an ex parte appeal to be an error then an interference would exist and would have to be redeclared. The Court of Appeals of the District of Columbia has repeatedly held that the lack of disclosure by one party to an interference is a proper ground for an award of priority to the other party-e. g., Cosper v. Gold and Gold (C. D., 1911, 387; 168 O. G., 787; 36 App. D. C., 302.) The decision of the Examiners-in-Chief is reversed as to all except claim 15, and priority is awarded to Gammeter on claims 1 to 12. EX PARTE SCHNEIDER. Decided June 18, 1918. 253 O. G., 513. 1. REISSUE-DELAY IN APPLYING FOR-BROADER CLAIMS. Where two years and eight months after the grant of a patent an application for reissue is made with broader claims, Held that the reissue was properly refused. 2. SAME-SAME-INTERVENING RIGHTS. Where there is a delay of two years in filing a reissue application after the grant of the original patent, Held that intervening rights will be presumed, in accordance with the trend of recent decisions. 3. SAME-SAME-INSUFFICIENT EXCUSE. Where it appears that a patentee did not discover that the claims of his patent were unduly limited until his attention was called to it more than two years after the grant of the patent, Held that this did not constitute a sufficient excuse for the delay in filing his reissue application. APPEAL from Examiners-in-Chief. GEARING. Messrs. Fay, Oberlin & Fay for the applicant. NEWTON, Commissioner: This is an appeal from the decision of the Examiners-in-Chief affirming the action of the Primary Examiner refusing this reissue for broadened claims. The essential facts in this case are that applicant delayed two years and eight months after the issue of his patent to ask for claims admittedly broader than are the claims of the original patent. Since the decision of the Supreme Court in Topliff v. Topliff et al. (C. D., 1892, 402; 59 O. G., 1257; 145 U. S., 156) it has become settled law that a reissue applied for more than two years after the issue of the original patent merely to broaden the claims should not ordinarily be allowed. Justice Brown in that decision, after a most careful review of the authorities on this point, and particularly the case of Mahn v. Harwood (C. D., 1885, 144; 30 O. G., 657; 112 U. S., 354), in which the Supreme Court had held void a reissue for broader claims granted nearly four years after the issue of the original patent and which discusses the reason why a period of more than two years is ordinarily fatal, held as follows: That due diligence must be exercised in discovering the mistake in the original patent, and that, if it be sought for the purpose of enlarging the claim, the lapse of two years will ordinarily, though not always, be treated as evidence of an abandonment of the new matter to the public to the same extent that a failure by the inventor to apply for a patent within two years from the public |