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have no right to make the claims corresponding to some or all of the counts of the issue. Where, however, no such motion was made and the parties have during the whole procedure of the case acquiesced in the position taken by the Primary Examiner in declaring the interference, a decision should be rendered that certain of the parties are not entitled to make the claims only in a clear case where there can be no doubt on the question. No such case exists here. R. C. Smith, Foley, and Anderson each shows a spiral cam which, as stated by the Examiners-in-Chief, is, in effect a mutilated screw-thread.

After reviewing the facts relative to the alleged disclosure of the invention by Smith and Foley, each to the other, the Commissioner admirably reviews the evidence as follows:

As there is no direct corroboration of either of these stories, it will be necessary to consider the testimony offered to show that the parties were in possession of the invention prior to the time of their alleged disclosures and the conduct of the parties and the surrounding circumstances.

Foley claims to have first devised a means for moving the clamp of an elevator safety at two speeds in 1888, to have made a drawing at that time, and to have made various drawings showing different forms of the device subsequently to that time. He has placed in evidence six drawings, which are designated "May 1888 Drawing," "July 1893 Drawing," "November 1895 Drawing," "March 14, 1899, Drawing," "February 1903 Drawing," and "Working Drawings, Sheets 1, 2, 3, 4, and 5." The Examiner of Interferences has fully discussed the testimony of Foley and the witnesses to whom these drawings were shown and by whom they were signed, and it is not deemed necessary to repeat that discussion here. It is sufficient to say that the testimony clearly shows that Foley was in possession of the invention in issue as early as 1896. The hand-operated feature which appears in his application is first shown in the 1903 drawing. It is also shown in the working drawings, which are alleged to have been made in 1904. As to these dates there is no sufficient corroborating evidence. It is stipulated, however, that the working drawings were taken to Munn & Co. by Foley on January 27, 1905, and his application prepared therefrom.

E. A. Smith claims to have conceived the invention in issue in 1897 and to have disclosed it at that time to Lindstrom and Mason, superintendent and chief draftsman, respectively, of the A. B. See Elevator 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 low-pitch 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 signature "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.

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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.

As to No. 496, E. A. Smith's earliest date having been fixed at January 27, 1905, there is no difficulty in disposing of this controversy. The record clearly discloses that Anderson, on January 30, 1905, took his drawings, which fully disclose the invention in issue, to Munn & Company, and that his application was prepared therefrom. Anderson is corroborated as to a disclosure of the invention as early as December, 1903, but discarding this evidence, it clearly appears that he was preparing the drawings which were taken to Munn & Company, and had them fully completed, prior to January 27, 1905, Smith's earliest date.

The record in this case is a voluminous one. We have examined the evidence called to our attention in the briefs of the respective parties with care, and can find no possible reason for disturbing the judgments of the Commissioner of Patents.

The decisions of the Commissioner in the respective cases are affirmed, and the clerk is directed to certify these proceedings, as by law required. Affirmed.

[Court of Appeals of the District of Columbia.]

KINSMAN V. KINTNER.

Decided May 5, 1908.

136 O. G., 1532; 31 App. D. C., 293.

1. INTERFERENCE-REDUCTION TO PRACTICE-LACK OF DILIGENCE.

Where it appears that Kinsman installed mechanism embracing part of the issue in 1890 which was experimental in its nature and found to be unsuccessful, and immediately thereafter unsuccessfully tested a second experimental device, and in 1892 and 1893 installed a system embodying the invention which after being used for several months was taken out and discarded, and no further evidence of activity on the part of Kinsman was shown prior to the filing of his application in December, 1903, which was subsequent to the time Kintner entered the field and reduced the invention to practice, and during this time Kinsman was active in experimenting with other forms of invention, Held that he was lacking in diligence. 2. SAME-SAME-SAME.

The object of the patent laws is to foster and protect invention for the universal benefit of mankind, and while every presumption will be resolved in favor of the inventor who delays filing an application until he has perfected his invention the object of the law would be lost to view should we permit the displacement of an inventor who has given the world the benefit of his discovery by one who has permitted his invention to lie dormant for a decade.

Mr. Chas. S. Champion and Mr. J. F. Hefferman for the appellant. Mr. S. T. Fisher and Mr. Ernest Wilkinson for the appellee.

ROBB, J.:

This is an interference proceeding involving improvements in blocksystem safety appliances for railways, in which an automatic powercontrolling device carried by the vehicle is adapted to be actuated by a device upon a line of way when the track is obstructed to cut off the power and apply the brakes, and is expressed in the following

counts:

1. The combination with a line of way having a normally closed electrical controlling-circuit, of a vehicle movable along said line of way, an automatic controller governing the movement of said vehicle, a trip on the line of way and movable into the path of said controller, and electrical trip-operating means on said line of way and included in said controlling-circuit and operative for normally holding said trip out of action.

2. The combination with a line of way and with a vehicle movable therealong, of an automatic controller governing the movement of said vehicle, a trip on the line of way and movable into the path of said controller, and a solenoid connected with said trip and electrically operative for normally holding' said trip out of action.

3. The combination with a line of way and with a vehicle movable therealong, of an automatic controller governing the movement of said vehicle, a trip on the line of way and movable into the path of said controller, elec

trical trip-operating means on said line of way and operative for normally holding said trip out of action, and a power device of another character for shifting said trip into action.

4. The combination with a line of way and with a vehicle movable therealong, of an electrical controlling-circuit, an automatic controller governing the movement of said vehicle, a trip on the line of way and movable into the path of said controller, a signal device, and electrical means on said line of way and governed by said controlling-circuit for operating said trip and signal device in harmony.

5. In a system for controlling the movements of electrically-operated railwayvehicles, the combination with the power-circuit, of a normally closed controlling-circuit governed by the power-circuit, and means for deënergizing said controlling-circuit and automatically breaking the power-circuit on the vehicle and applying a brake.

6. In a system for controlling the movements of electrically-operated railwayvehicles, the combination with the power-circuit, of a normally closed controlling-circuit governed by the power-circuit, a track-signal governed by the controlling-circuit, and means for deënergizing said controlling-circuit and automatically stopping the vehicle.

The Examiner of Interferences and a majority of the Examinersin-Chief and the Commissioner in their decisions awarded priority to Kinter, the senior party, who relied solely upon his filing date as his date of conception and reduction to practice.

In his original preliminary statement filed April 25, 1905, Kinsman, the junior party, alleges that he conceived the invention of the issue in the summer of 1890 and that he made drawings and disclosed the invention to others during that year and 1893. He does not claim that he ever made a model of the invention. His preliminary statement also contains the admission

that he has never embodied the whole of the invention constituting the subjectmatter of this interference in a full-sized apparatus, but that he has embodied parts of the same in automatic train-stopping systems which have been successfully reduced to practice and used for long periods of time, such a system having been installed by him in the summer of the year 1890 on the Fitchburg Railroad in Massachusetts and used on said road for a considerable period of time.

It appears that Kinsman installed mechanism embracing parts of the subject-matter of counts 1, 2, and 3 of the issue upon the Fitchburg Railroad at Ayer Junction, Mass., about 1890. This device, which was experimental in its nature, was found to be unsuccessful and was discarded. Immediately thereafter a second device was installed which embodied the subject-matter of counts 1, 2, and 3 of this interference and of count 4 except the signaling device. This second device was experimentally tested and was found to be subject to objections. Kinsman testified that he did not consider it a good type of automatic train-stopping device for open country for several stated reasons. This device followed the fate of the first and was superseded by a third experimental system, which. however, did not involve the

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