and correct. A foreign patentee cannot prove an earlier date for his invention than the date of his foreign patent, and a foreign inventor who has not patented his invention abroad cannot anticipate by his evidence the date on which the knowledge of his invention was first brought to the United States, either by himself or by his confidential agent. A preliminary statement is not admissible in evidence in favor of the party making it, although it may be used against him as rebutting or limiting the other evidence which he presents.10

§ 601. Interference Proceedings: Rules of Evidence.

The statute authorizes the Commissioner to make rules for taking testimony in cases pending in the Patent Office, and provides for the issue of subpoenas from the Federal courts in the districts where the witnesses reside, and for compelling the attendance of those witnesses who disregard the ordinary

summons.1

In the exercise of the authority thus conferred upon him the Commissioner has established certain regulations, prescribing that all evidence offered in contested cases must be presented in depositions, taken upon due notice to the adverse parties in the form of interrogatories and replies, and sealed up, addressed, and forwarded to the Commissioner by the officer before whom they were given.2 Where witnesses reside abroad, such depositions may be taken before an American consul, or other proper officer, by order of the Commissioner, based upon the motion of the claimant and his sworn averment that the motion is not made for purposes of delay or vexation to the adverse party and that the evidence cannot be otherwise conveniently obtained. After these depositions are returned to the Commissioner and duly opened, they are subject to inspection by the parties, but cannot be withdrawn. Unless for satisfactory reasons to the contrary they must be printed by some person appointed by the Office for that purpose, and copies must be furnished to the Office and to each of the contestants. Caveats and other official records, and any special matter contained in printed publications, may be filed and used as evidence upon due notice to the adverse parties, when competent and pertinent to the issue. No evidence touching the matters in dispute can be considered at

§ 601. That the rules of evidence in interference proceedings are those of the law in force in the District of Columbia, see Marsh v. Rein (1888), 43 O. G. 1453; Koen v. Quint (1883), 23 0. G. 1329.

That witnesses are under the control of the courts, not of the Commissioner, see Osgood v. Badger (1888), 44 O. G. 1065.

That husband and wife are not competent witnesses for or against each other in interference proceedings, see Marsh v. Rein (1888), 43 O. G. 1453; contra, Koen v. Quint (1883), 23 O. G.

1329.

That where one party to an interference attacks the patentability of the invention he must offer all his evidence

on this point as well as that of priority before his opponent can be obliged to put in his proof, see Clark v. La Dow (1888), 43 O. G. 248.

2 That a notice to take testimony after so short an interval that the party must travel night and day to get there is not reasonable notice, see Hoag v. Abbott (1879), 15 O. G. 471.

That a failure to appear to take a deposition after reasonable notice is a waiver of all technical irregularities, see Hoosier Drill Co. v. Ingels (1879), 15 O. G. 1013.

That the Commissioner may order depositions to be taken abroad before consuls, see Lauder v. Crowell (1879), 16 O. G. 405.

the hearing unless obtained in accordance with these rules. But merely technical objections, not working any substantial injury to the party raising them, will not be regarded, and where such injury is inflicted the injured party must make his objection as soon as he becomes aware of its existence, and notify the Office and the adverse party that unless the objection is removed it will be urged against him at the hearing.

§ 602. Interference Proceedings: Arguments of Contestants.

The rules advise that arguments and briefs in all contested cases should also be printed and filed before the hearing, and parties neglecting to avail themselves of this advantage in due season have no right to an extension of time for that purpose. Upon the day named for the hearing, any party appearing will be heard, but no case will be taken up for oral argument after the day appointed, except by the consent of all parties. After the arguments have been completed, no further hearing will be accorded to either party unless at the request of the tribunal having jurisdiction of the case.

§ 603. Interference Proceedings: Judgment of Priority.

An interference having been once declared, it cannot be determined without a formal dissolution, or a judgment on the issue of priority. This judgment may be rendered either

4 That objections to the evidence must be urged at the hearing, under the rules, see Hoag v. Abbott (1879), 15 O. G. 471.

That a deposition improperly taken may be objected to at the interference hearing, though ordinary objections which may be cured by a new commission to take testimony, or formal objections merely, should be taken by motion to suppress, see Milligan v. Niedringhaus (1886), 38 O. G. 103.

That it is always better to move to suppress in advance of the hearing, see Milligan v. Niedringhaus (1886), 38 O. G. 103.

denied, except in extreme cases, if the party moving has neglected to take proper steps for his protection, see Osgood v. Badger (1888), 44 O. G. 1065.

That a motion to suppress must be made without unreasonable delay, see Milligan v. Niedringhaus (1886), 38 O. G. 103.

That if a witness in an interference refuses to answer a proper question on cross-examination his entire testimony will be excluded, see Milligan v. Niedringhaus (1886), 38 O. G. 103.

§ 603. That where an interference exists the proceedings cannot terminate

That a motion to suppress will be without a judgment on account of the

upon the testimony, or upon the written concession of the adverse parties, signed by the parties themselves and not merely by their attorneys, or upon the written declaration of either of the parties that he has abandoned his application.2 Such written concession must be consistent with the facts,

no false or fraudulent admission of priority authorizing a judgment contrary to the truth.3 In rendering a judgment on the testimony the examiner of interferences must follow the same rules concerning the performance and completeness of the inventive act which are recognized as binding in the courts. The several parties are presumed to have made the invention in the chronological order in which they filed their original applications, and the burden of proof rests on those who endeavor to establish any different order of invention. Where all the parties are American inventors judgment must be awarded to the claimant who establishes the real priority of his inventive act. Where one of the parties is a foreign inventor and the others are American, the latter is entitled to priority unless the invention of the former was known or used in the United States, or patented or published, before the conception of the invention by the latter. If one of two foreign inventors has obtained a for

abandonment of his application by one party, if the other party claims it, see Adler v. Van Wagener (1875), 8 O. G. 728.

That a judgment must be rendered except in cases where the rules other wise provide, see Hicks v. Keating (1887), 40 O. G. 343.

2 That an agreement conceding priority is not good unless signed by the adverse party himself, the attorney hav. ing no authority to sign it, see Tucker v. Kahler (1879), 15 O. G. 966.

That a concession of priority is not available except between the parties and in reference to pending proceedings, see Hammond v. Pratt (1879), 16 O. G. 1235.

* That a concession of priority contrary to the truth is void, see Hammond v. Pratt (1879), 16 O. G. 1235; Packard

v. Sandford (1879), 16 O. G. 1182; Allen v. Gilman (1872), 2 O. G. 293.

See also § 363 and notes, ante. 4 That unless a contrary right appears priority will be awarded to the party who first filed a complete application, including petition, specification, drawings, model, and fee, see Lapham v. Bettendorf (1879), 16 O. G. 137.

That priority cannot be awarded to the earliest applicant, who has merely conceived the idea and filed an application, against one who, before the filing of such application, had reduced the idea to practice, see Gardner v. Dudley (1880), 17 O. G. 801.

That priority will be awarded to the first perfecter of the invention though the other party were the first to practically use it, see Martin v. Bogle (1877), 12 0. G. 625.

eign patent, he must prevail over his adversary, although the other was in fact the first inventor; if both have obtained foreign patents the earliest patentee has the superior right; if neither has a foreign patent the earliest introducer into the United States prevails.5 Where the decision in favor of one applicant against another is not appealed from, or is sustained upon appeal, it is equivalent to a rejection of the defeated applications, and a patent is awarded to the victorious applicant alone. But when an applicant establishes his own priority against a patent, the patent cannot be affected by the judgment, and the sole result is the issue of another patent to the applicant. Where neither party proves priority judgment is rendered against both, in order that both may be enabled to appeal. The wrongful issue of a patent to one applicant, pending an interference, does not warrant the issue of another to his rival where the priority of the latter is not proved.8

5 That an invention made in the United States has priority over a foreign invention unless the foreign invention were used in the United States, or were published or patented, before the domestic invention was made, see Lauder v. Crowell (1879), 16 O. G. 405.

That as between two foreign inventions the first applicant in the United States has priority, if he is an original inventor, see Lauder v. Crowell (1879), 16 O. G. 405.

That as between two foreign inventors who are applicants in the United States, if one of them has a foreign patent he is entitled to priority, though the other was the first inventor, see Lauder v. Crowell (1879), 16 O. G. 405.

That when two foreign applicants are both foreign patentees, the earliest patentee is entitled to priority, see Lauder v. Crowell (1879), 16 O. G. 405.

That a foreign patentee stands like any other applicant until a contest begins, and must then prove his priority, see Lauder v. Crowell (1879), 16 O. G. 405.

• That the applicant for a specific invention, having been defeated in an interference with the applicant for the generic invention, cannot have a patent for the species subject to that for the genus unless he disclaims the genus or takes some other further action, see Ex parte Gardner (1880), 17 O. G. 626.

That if neither party seems to be the original and first inventor judgment should run against both, see Wood v. Eames (1880), 17 O. G. 512.

8 In Ex parte Frick (1872), 1 0. G. 574, Leggett, Com.: (574) "It is claimed by the applicant in this case that during the pendency of his application a patent has been issued to other parties for substantially the same thing, and he now asks that a patent be al lowed him without being called upon to prove priority of invention in an interference with the existing patent. If it be true (which I now neither admit nor deny) that a patent has issued during the pending of this application with which this application at the time interfered, then the Office has committed