pending in this Office for a patent for an improvement in drills, and being notified that the claims in such application conflicted with the patent of Esler, a copy of which was sent to him, he states that he at once devised the present improvement of the Esler device, and within a few days made the drawing "Fulgham Exhibit 1." As to this drawing, his testimony is corroborated by that of his son, Orla B. Fulgham, who swears that he saw this drawing at the time named and wrote his initials thereon at his father's request. At the suggestion of Fulgham, Wilson Jones wrote a letter to Wescott and Kinsey, who were then in St. Louis, advising them to go to Belleville to see the Esler drill, the patent upon which he supposed would control this improvement, and to see upon what terms a license to use the same could be obtained. The purpose of securing such license was, he has stated, to enable him to bring out this improvement in event he failed to obtain a patent on his application then pending. At the first hearing before the Examiner of Interferences the testimony relative to this letter was ruled out for the reason that as the absence of the letter itself was not accounted for it was held to be secondary and inadmissible. What weight, if any, my predecessor gave to this testimony does not appear from his decision.

Nothing further was done by Fulgham toward the embodiment of the invention until some time in the spring of the year 1875, when it is alleged Morris and Westcott came into the pattern-room of the company and Morris ordered Fulgham to make castings as Wescott should direct. There were present at this interview in the pattern-room Morris, Fulg. ham, Halteman, and Westcott.

Westcott swears that prior to this interview he had conceived the invention in controversy, had repeatedly requested Fulgham to make patterns for the same, but that the latter always urged objections thereto. This is denied by Fulgham. Westcott also swears that before this time he disclosed the invention to Morris, to Kinsey, and to Reeves. Upon this point he is contradicted in substance by Kinsey and Morris, but is corroborated by Reeves, who also swears that Westcott stated the fact that Fulgham had objected to making the patterns. As to what occurred at this interview the testimony is again found at irreconcilable variance. Fulgham, in his preliminary statement, says:

Mr. Morris, superintendent of the Hoosier Drill Company, came into the patternroom with Mr. Westcott and said to me that Mr. Westcott had come in to tell me what he wanted done. Thereupon Mr. Westcott handed to me an entire feeding device (which is in my possession and will be produced in evidence), comprising feedcup, wheel, thimble, and ring of the Esler drill, and told me he wanted me to dress those castings up for patterns, as he was going to have that device put on the drill. I replied, if those were his orders, I would do so, but that I should be very sorry to see the company adopt that device, which I considered worthless in its present form. His reply was that the Esler drill gave entire satisfaction where it had been used; that the company had already made two failures on new devices; that it was too late in the season to try any more experiments, and if I refused to make patterns of the castings he brought in he should take them to Richmond and have it done. I said I had not thought of refusing, and if he would let me show him drawings of what I

wanted to make, and if he still insisted on having the Esler device put on the drill, I would do so at once. After some further talk he finally consented to see the drawings; but on looking at them he could not understand my plans well enough to decide in regard to them, and he then asked me how long it would take me to make the patterns on my plan. I told him I would have my device so that he could see what it was in two and a half days, and with this assurance he consented for me to go on with it.

This statement of Fulgham is corroborated by Morris, but is contradicted by Westcott, who claims to have disclosed to Fulgham the changes he wanted made in the Esler drill, and his testimony is fully corroborated by that of his witness, Halteman. As to what occurred at this interview, therefore, the testimony is evenly balanced.

This last witness and William R. Mount also testify that during the making of the patterns Fulgham stated that he was carrying out Westcott's plan, and that in his judgment it would not be a success. clearly appears that the drill as finally adopted contained features suggested by others than the parties contestant. The indicator, for example, which forms the subject of a claim in Westcott's patent, was admittedly the invention of Morris.

Westcott and his witnesses, Halteman and Mount, swear that at a test of the drill immediately after the castings were made it was found to cut the grain, and that Fulgham was elated at this, as he had predicted it a failure, and that Westcott suggested the filing off of the wing, which at once remedied the difficulty. This is denied by Fulgham, who states that the only persons present at such test were Morris, Kinsey, Westcott, and himself. Kinsey, on rebuttal, swears that he thinks these were the only parties present, and admits that the device, when first operated, cut the grain, and states that some one suggested the filing down of the wing, and denies that Fulgham was elated at the cutting of the grain. To the same effect, also, is the testimony of Morris. Here again the testimony appears to be evenly balanced.

Since the spring or summer of 1875 the Hoosier Drill Company have manufactured in large quantities the drills embodying the invention here at issue.

In the fall of 1875 Westcott made his application for letters patent, and his correspondence with his attorney relative thereto appears to have been entered in the letter books of the company, which were open to the inspection of its officers. Fulgham swears that Westcott took the description, &c., to the attorney with the understanding that he (Fulgham) was to sign the application, but that Westcott gave excuses for the delay in the return of the papers for signature until after the patent had issued to him. Fulgham further states that on learning of the fact he accused Westcott of having made a false oath, and upon this point he is corroborated by Kinsey and Morris. Westcott explains this by stating that Fulgham accused him of false swearing if he swore that he was the inventor of the indicator claimed in the patent, and states, also,

that he did himself not know that the indicator was claimed, as he had given his attorney no instructions to include the same, and it appears to have been subsequently injected into the case.

There are numerous other minor controverted points in the original testimony; but the above will suffice for a proper understanding of the additional testimony, which must determine my findings in the case.

A number of witnesses have been produced by Fulgham to impeach the credit of Westcott as a witness in his own behalf; but this attempt is, in my judgment, a failure, as the testimony of the witnesses relates rather to his general character than to his character for truth and veracity, which alone is here in question, and appears, moreover, to have been founded upon particular facts rather than upon general repute. Were this testimony, however, more forcible, the counter-testimony in behalf of Westcott would destroy the weight that might otherwise attach thereto.

The letter referred to by Fulgham as having been written at his request by Wilson Jones to Kinsey and Westcott, the testimony relative to which was on the first hearing of the case ruled out by the Examiner of Interferences, appears, from the testimony of Kinsey, to have been lost, and testimony as to the contents thereof is consequently now admissible. Wilson Jones, in testifying as to the contents of the letter, says:

What caused me to write the letter was this: Fulgham used to belong to the Wayne Agricultural Company prior to this time, and I was a member of that company before I became a member of the Hoosier Drill Company. Fulgham had applied for a patent before he left the Wayne Agricultural Company, and as Mr. Kirsey, president of the Hoosier Drill Company, and Mr. Westcott, as secretary, had gone to the St. Louis fair, while they were gone Fulgham got word from the Patent Office that Esler and some other parties had patents or applied for patents-that his was rejected. Mr. Fulgham came to me and had several conversations with regard to his inventions. He told me that he had a better improvement for a drill several times. He seemed to be afraid that he could not get his improvement through the Patent Office; he thought it would in all probability infringe on Esler's patent. He proposed to write to Esler to go into partnership with him in the patents. I suggested to him that we had better write to Kinsey and Westcott. We had quite a conversation with regard to which would be the best plan. I felt an interest as a stockholder in the Hoosier Drill Company, and did not think it was to my interest for Fulgham to go into partnership with Esler in a patent, and after these conversations Fulgham requested me to write to Kinsey and Westcott, which I did, and stated in my letter that if Esler had no drill at the fair that we wished them to go down to Belleville and examine the drill and the patents, and perhaps make arrangements for license, but requested them not to bind themselves or the company to make any given number of drills. The object was to get acquainted with Esler and his patents, and enable the Hoosier Drill Company to make as good, if not a better, drill than any other company.

I can predicate nothing favorable to Fulgham's case upon the testimony with regard to this letter. The fact of the pendency at that time of his application, which stood rejected upon the patent to Esler, as well as the fact that after obtaining the license to use the Esler device no attempt was made to apply the present improvement thereto, satisfies me that the purpose of this letter was not to enable Fulgham to give to

the Hoosier Drill Company the invention now at issue. Kinsey also contradicts the former testimony of Westcott as to the date of the interview wherein Fulgham accused him of false swearing and as to what occurred at that time.

Morris, when called again as a witness, reiterates his former denial that Westcott disclosed to him the invention, as also his former contradiction of Westcott, Halteman, and Mount as to what occurred at the first test of the drill, although he now admits that Halteman and Mount might have been present during such test. He also states that the request made by the stockholders that Westcott resign his position as treasurer was because of his having taken out the patent in his own name and having refused to assign it to the company. The testimony of this witness on all material points still stands contradicted.

Two witnesses are produced to give additional testimony relative to the drawing "Fulgham Exhibit 1"-viz, Sallie H. Roberts and Emma R. Fulgham. The testimony of the latter was objected to at the time it was taken, for the reason that she is the wife of the applicant here, and was properly thrown out by the Examiner of Interferences, in view of the rulings in the case of Workman v. McNaught (16 O. G., 216). Sallie H. Roberts testifies, with regard to this drawing, that in the fall of the year 1873 Mr. Fulgham was making drawings of a drill, and requested his son to sign his initials to the same, and that she does not remember to have seen him making other drawings than the one. The testimony of this witness does not identify the drawing "Fulgham Exhibit 1," but taken in connection with the original testimony of Fulgham and his son, may be regarded as corroborative of the same. Whether this drawing was or was not made, as alleged, in the fall of 1873 is a fact that can have but little force. It can serve Fulgham simply by tending to show that he had the invention at issue in his mind at the time Westcott claims to have communicated the same to him, but abandoned, as it ap pears to have been, until needed in this case. He cannot go back through the long period of his neglect and claim the same as the date of his invention. I can regard the same but in the light of an abandoned experiment-if experiment even it can be called-which cannot serve to invalidate a patent:

The most important part of the additional testimony on behalf of the patentee is that of the witnesses Shuman, Caswell, Halteman, and Mount, tending to show statements by Fulgham that would indicate that the invention was not his, and would, in his judgment, prove a failure.

Testimony has been adduced by both parties to show the current rumors of the shop as to who was the inventor of the invention in controversy, but upon this testimony I can base nothing favorable to either the applicant or patentee. Nor do I deem it necessary to review in detail the several collateral matters with regard to which the testimony is at variance.

I do not find in the additional testimony anything which, in my judg. ment, can turn the evenly-balanced scales of the former proofs in the applicant's favor, and the conditional decision of my predecessor must therefore stand as final against him.

In conclusion, I may add that from a careful consideration of the case I am satisfied that were it before me with the entire testimony as a new case my findings would still be in favor of the patentee. With testimony of the contradictory character of the present the true solution of the ques. tion at issue can best be reached through the attendant circumstances of the case, and these I think point conclusively to the patentee as the rightful inventor. Fulgham, by his own showing, had at the time he claims to have made this invention a contract with the Hoosier Drill Company by which he was "to devote his time and ingenuity energetically to their interests," and was to obtain royalty for any and all of his inventions that might be adopted by them; and yet, although the company had a license to use the Esler drill and were making continuous efforts to perfect the same, he did not disclose to them his improvement thereon, which would attain the very end which they sought. This fact seems incompatible with the fact that he had the drawing (Exhibit 1), or, if he did have such drawing, that he regarded the invention embodied therein as of any practical value. Moreover, it is Westcott to whom the public are indebted, since but for him this drawing claimed to have been made by Fulgham would have doubtless yet remained locked up and the invention would have still been undisclosed. The conduct of Kinsey and Morris in repeatedly requesting Westcott to assign his patent to the company would seem to argue that at that time they regarded him as the party entitled thereto, since it appears that they knew that a patent taken out by one who was not the inventor of the matter embraced therein was invalid.

From the entire case I am satisfied that Fulgham has not made out such a state of facts as would defeat the patent to Westcott in the courts, either by showing himself a prior diligent inventor or by conclusively proving fraud upon the part of the patentee.

The decision of the Board of Examiners-in-Chief is accordingly reversed.

EX PARTE LEE.

Decided August 31, 1880.

18 O. G., 624.

1. The patentable features of a railway or other ticket, like those of any other substantive thing, must depend upon peculiarities of mechanical construction.

2. The printed matter upon a ticket is nothing more than an arbitrary direction as to how such ticket is to be used, and can have no bearing upon the patentability of the ticket itself.