tor Company, by whom he was employed, to have made a sketch of the invention in 1902, and to have at that time explained the invention to Miss Constance Wack and to Frank Zittel, and to have made another sketch on January 27, 1905, which he used in explaining on that day the invention to Marshall, his attorney, by whom his application was prepared.

Of the two persons to whom Smith claims to have disclosed his invention in 1897, only Mason is called as a witness. He testifies that in 1897, which date he fixes by reference to the time when he and E. A. Smith were employed by the A. B. See Elevator Company, the latter explained to him how he would use a high-pitch and a lowpitch screw to move the jaws of an Ellithorpe safety, first quickly and then more slowly, but more powerfully. Mason admits, however, that he is testifying solely from memory as to a disclosure alleged to have been made to him nine years previously. His account of what Smith disclosed to him is given in very general terms, for he states that he cannot recall the details of the invention. He also admits that, although many improvements in elevator-safeties were called to his attention while he was employed by the A. B. See Elevator Company, the only one that he can remember is this one of E. A. Smith. In view of these admissions his testimony is clearly insufficient to corroborate Smith's claim that he was in possession of the invention at this time.

Smith has introduced in evidence the sketch alleged to have been made in 1902. It bears the signatures "Edward A. Smith" and "Frank Zittel" and is dated September 29, 1902. The sketch is badly mutilated, a considerable portion of it having been torn away. The showing of the remaining part is only diagrammatic and utterly insufficient by itself to form a disclosure of the invention, though E. A. Smith points out the portion thereof which was intended to show two screws. The condition of the sketch renders it suspicious, and Smith's explanation that it was torn because some grease fell on it while he was comparing it with an Otis safety on an elevator-car is far from convincing, both because it is not apparent why Smith, who was thoroughly familiar with the construction of the Otis safety, should have wanted to compare the sketch with an actual safety and because the spots on the remaining parts appear to have been made by graphite or some other very heavy lubricant, and there is no indication of any tendency of this to spread. The testimony of Zittel, who signed the sketch, is not sufficient to corroborate Smith. Zittel admits that he cannot read mechanical drawings and the sketch is useful to him only in recalling the verbal disclosure made to him by Smith. He is therefore testifying solely from memory as to the disclosure four years after it is alleged to have been made and after he

had frequently discussed the matter with Smith. His statement, moreover, of what Smith disclosed to him does not include all the details of the device.

Marshall fully corroborates Smith as to the disclosure made to him on January 27, 1905, and this is the earliest date of possession of the invention that can be awarded to Smith.

While, as pointed out above, there is no direct testimony corroborating the testimony of either Foley or Smith as to his alleged disclosure to the other, there are several circumstances which tend to corroborate Foley's testimony.

In the first place E. A. Smith's testimony is discredited not only by reason of the 1902 sketch and his explanation with respect thereto, but by reason of two other exhibits. The first of these is Smith's notebook, in which appear two entries with respect to the present controversy. The first entry relates to Smith's alleged disclosure to Foley on January 24, 1905, and the second to the date when Smith says Foley told him that he had applied for patent. These entries, which are the only ones relating to the controversy or to Smith's alleged invention that appear in the book, are not placed where they would have been if they had been made on the dates in question. They appear neither in the space allotted to the days on which they are alleged to have occurred, nor directly below such space, where they naturally would be if the space was filled by other matter, but are entered one in a space left blank by Sunday and the other on the margin.

The other exhibit is a printed copy of the regulation above referred to, which bears in Smith's handwriting the following entry:

January 26, 1905. 1st information received from Mr. Boyhan as to the exact operation of the law.

E. A. SMITH.

Smith testifies positively that the entry was made on the date which it bears. In rebuttal Foley called certain of the officials of the building department and several of the employees of the Brown Company, by whom the regulation was printed, and their testimony shows that it was impossible for Smith to have obtained a printed. copy of the regulation earlier than February 21, 1905.

Boyhan, who was chief elevator-inspector, testifies that Foley disclosed the invention in issue to him in the latter part of December, 1904, or early part of January, 1905, and that the day after the test. at the Times Building on January 6, 1905, Foley told him that he (Foley) had explained the invention to E. A. Smith and that he told Foley he thought he was making a mistake in disclosing his invention to outsiders.

The conduct of Foley and E. A. Smith was in marked contrast. Foley made no special haste in filing his application after the promulgation of the building department order. Three days after Smith's alleged disclosure to him he took to his attorney several sheets of well-worked-out drawings. He told Smith of the fact that he filed his application and informed him of the progress of the prosecution thereof.

E. A. Smith, on the other hand, three days after his second interview with Foley went to Marshall with a crude sketch and after a hasty interview instructed him to file an application as soon as possible, since he believed that Foley intended to steal his invention. The only reason he could give for that belief was that when he told Foley of his invention the latter seemed surprised and opened his eyes very wide. Smith said nothing to Foley about having filed an application, and it was not until the interference was declared that Foley learned that this application had been filed. Foley states that the first time he met Smith after receiving the notice of the interference was at a test at the store of Stern Brothers, and that he then told Smith in exceedingly plain language what he thought of him. Miller, the engineer at Stern Brothers, states that Foley and Smith had a heated interview on the day of the test, and while he was not near enough to them to hear what was said Foley told him about half an hour afterward that the loud conversation was due to the fact that Smith "had infringed on the elevator apparatus which he had invented."

In view of the testimony and the surrounding circumstances of the case and the conduct of the parties it is held that as to the common subject-matter of the two cases E. A. Smith was not an original inventor, but derived his knowledge thereof from Foley.

The decision of the Examiners-in-Chief awarding priority of invention to P. F. Foley. is affirmed.

IN RE MIAMI CYCLE & MFG. COMPANY.

Decided July 17, 1908.

136 O. G., 1067.

ACCESS TO PENDING APPLICATION-SHOWING OF INTEREST.

Access will not be granted to a pending application referred to in a patent purporting to be a division of such application merely upon an affidavit by an attorney that suit has been brought on such patent against one of petitioner's customers, that petitioner is desirous of defending such suit, and that access to the prior application is deemed necessary in order that a proper defense may be made. The practice requires that access to pending applications will be refused except to parties showing proper interest therein, and the mere allegation of an attorney that the company for which he is counsel desires to defend a suit brought on a patent divided out of such application is not a sufficient showing of interest.

ON PETITION.

Messrs. Brock, Beeken & Smith for Miami Cycle & Mfg. Company. Mr. T. Hart Anderson and Mr. Melville Church for Townsend.

MOORE, Commissioner:

This is a petition for access to application No. 693,117, filed by H. P. Townsend.

The ground upon which this petition is based is that Patent No. 850,077, which was granted to Townsend, purports to be a division of application No. 693,117; that suit has been brought by the owners of the Townsend patent against the Andrus and Naedele Company, who are customers of the Miami Cycle & Mfg. Company; that the latter company is desirous of defending the suit, and that it is essential in order that a proper defense may be made that access may be had to the parent application.

In the decision in re Dyer, (C. D., 1903, 365; 106 O. G., 1508,) where a similar petition was filed, it was held that—

Since the patent refers to the earlier application, and thereby secures to the patentee the benefit of its date, it is clear that the patentee is not entitled to demand that the application be concealed from any persons having a real interest in the record leading to the grant of the patent. The application is a part of the record on which the patent was granted and is public property in the sense that it may be seen by any one having good reasons for inspecting it. Notwithstanding the rights of the public in this matter, however, it is believed that the inventor may have some equitable rights which should be safeguarded in so far as possible. The earlier application may and probably does disclose other inventions besides that included in the patent, and those inventions should not be made public property or be disclosed to a stranger to the record except where necessary.

In the decision in re The Bullock Electric Mfg. Company (C. D., 1907, 207; 129 O. G., 1611) it was held that the fact that a suit had been threatened against the petitioner on a certain patent did not entitle him to be furnished with a copy of a prior application referred to in the prosecution of that patent. In the present case no allegation is made that the Miami Cycle & Mfg. Company has actually undertaken the defense of the suit against its customer, and the mere allegation of the attorney that the company for which he is the counsel is desirous of defending this suit is not believed to be a sufficient showing of interest on the part of that company to justify granting them access to the parent application.

It is urged by the attorney of petitioner that the fact that the patentee in his patent states that the application upon which it was granted is a division of an earlier application makes that earlier application a part of the record of the patent and that as such any

person should be entitled to a copy of the same. As stated in the case of Dyer, above cited, the earlier application probably discloses other inventions besides that included in the patent, and while a party is entitled to see the whole record upon which the patent issued, if it is necessary to preserve his rights, he is not entitled to see it if he presents no good reasons therefor. The mere allegation that a party is in some way or other interested in the patent and in determining whether the application on which the patent was granted was, in fact, a division of an earlier application is not believed to be a sufficient showing of interest to justify granting him access to such earlier application.

The petition is denied.

CORRINGTON v. TURNER.

Decided August 7, 1908.

136 O. G., 1067.

1. INTERFERENCE-ABANDONMENT OF INVENTION-RULE 125.

A declaration of abandonment accompanied by a statement that applicant abandons certain counts because they are either limited or anticipated or are not applicable to the structure will not be accepted under Rule 125. 2. SAME-SAme—StrikinG FROM FILES.

A declaration of abandonment accompanied by reasons for filing the same will not be made the basis for judgment under Rule 125, but it should not be stricken from the files.

APPEAL from Examiner of Interferences.

FLUID-PRESSURE BRAKE.

Mr. Murray Corrington pro se.

Mr. Edward A. Wright for Turner.

BILLINGS, Acting Commissioner:

This case is before me upon appeals by both parties from decisions of the Examiner of Interferences. Turner appeals from the decision of the Examiner of Interferences dismissing his declaration of abandonment and ordering it removed from the interference files. Said declaration of abandonment states:

In the matter of the interference above noted, under the provisions of Rule 125, I hereby abandon the invention set forth in counts 1, 2, 3, 4, 5, 8, and 9 of the issue of this interference for the following reasons:

This statement is followed by four paragraphs, in each of which Turner alleges that certain counts are either limited and anticipated or are not applicable to his structure.