[Court of Appeals of the District of Columbia.] DAVIS v. HORTON. Decided June 9, 1908. 136 O. G., 1768; 31 App., D. C., 601. INTERFERENCE-PRIORITY-DILIGENCE. Where the junior party had disclosed the invention to several persons and had ordered tools to manufacture the same prior to the entry of the senior party into the field and in a few months thereafter actually sold a small number which was followed a few months later by the manufacture and sale of large numbers of such devices, Held that he was diligent in reducing his invention to practice. Mr. W. G. Carr for the appellant. Mr. L. S. Bacon, Mr. J. H. Milans, and Mr. Sheldon A. Wood for the appellee. ROBB, J.: This is an interference proceeding, and, as stated by one of the tribunals of the Patent Office, involves a fuse-holder of an inclosed type upon the exterior of which is mounted a mechanical indicator consisting of a spring attached to the casing or cover of the fuse, to show whether or not the fuse has been blown. The issue is stated in the following counts: 1. In a fuse-holder, a casing, a fuse therein, a spring secured to the exterior of the casing, and a transverse connection between said spring and the fuse serving to hold the spring in contact with the exterior of the casing while the fuse therein is unbroken. 2. The combination with a casing having end terminals and a fusible strip within the casing and connected to the end terminals, of a spring-actuated indicator supported exteriorly upon the side of the casing and a wire having its respective ends so attached to the indicator and to an intermediate point in the fusible strip as to exert a lateral strain thereon. 3. The combination with a casing or holder having end terminals and an inclosed fuse having its ends attached to the casing terminals, of a spring-actuated indicator upon the outside of the casing and a wire that projects through the side of the casing and has its respective ends attached to the indicator and to an intermediate portion of the fuse. 4. In an inclosed fuse or cut-out, a casing having an aperture through its side wall, an internal fuse-wire attached at its ends to the casing, an external springacting finger attached at one end to the casing, and a connection between the opposite end of said finger and fuse-wire, passing through said aperture, for holding said finger under tension. 5. In a fuse-holder, a casing, a fuse therein, having a weakened portion, a movable indicator secured to the exterior of the casing, and a connection between the indicator and the weakened portion of the fuse. 6. In a fuse-holder, a casing, a fuse therein having a weakened portion, a spring-actuated indicator secured to the exterior of the casing and a transverse connection between the spring-actuated indicator and the weakened portion of the fuse. Davis, the senior party, filed January 20, 1904, and alleged conception and disclosure of the invention August 1, 1903, and reduction to practice about the same time. These averments he sustained by competent evidence. Horton, the junior party, filed August 29, 1904, and alleged conception and disclosure in the spring of 1901, and reduction to practice in the spring of 1903. Counsel for Davis, with commendable candor, states that both parties to the interference are original and independent inventors, so far as the records show. Horton is an electrical engineer and skilled in the art to which this invention relates. In May, 1901, he was the electrical engineer of the Detroit Copper Mining Company at Morenci, Ariz. He testifies that along the last of that month he had a great deal of trouble in the blowing out of fuses, particularly in the store of the company, and that where several fuses were located in close proximity with each other it was difficult to ascertain which particular fuse or fuses had blown; that he thereupon sought to devise, and did in fact devise a device which he thought would obviate the difficulty; that he disclosed his idea to the company's purchasing agent, a Mr. Puckett, by means of sketches which he then made. Mr. Horton says of these sketches: I explained them fully to Mr. Puckett and showed him how the device worked, and how by attaching a spring fastened to the case and by a wire running from the spring to a cut-away portion of the fuse-strip, that the fuse would always burn in two where this weakened portion was, and that when the fuse had burned in two at this weakened portion the spring would be released and would assume its normal position away from the case and would provide mechanical means by which I could readily determine whether or not the fuse was blown. In November, 1901, Horton was called to his home in Michigan by the illness of his father who died late in December of that year. Horton administered upon the estate which occupied his time until the middle of December, 1902, when he went to Detroit, Mich., and established a plant for the manufacture of inclosed fuses. It was February before he got the factory under operation and made his first delivery of fuses. Soon after establishing his plant he conducted experiments on inclosed fuses embodying the idea which he had disclosed to Puckett at Morenci in 1901. In April or May he experimented with a device which embodied the dominating idea of the issue even though technically it differed from it. This device consisted of a fine wire extending through a fuse-tube and attached to the central portion of the fuse element, and so constructed that when the fuse was ruptured by the burning in two of the fusible element, the wire would be released, it being under tension during the operation. of the device by a small rubber band, one end of which was fastened to the wire and the other end to a nail driven into the board upon which the fuse-block was mounted. Several specimen devices were tested in the presence of witnesses, and the practicability of such indicators fully demonstrated. It appears that the National Board of Fire Underwriters were contemplating the issuance of specifications for standardizing inclosed fuses, and that Horton hesitated about attempting to put his invention upon the market until they had taken action. He did, however, explain a device which fully embodied the issue to one Massnick in July, 1903, and employed Massnick, who was a skilled mechanic, to work upon tools for cutting the fusible element for fuses that could be made to embody the invention. These tools were completed some time in September, and Massnick on October 1, 1903, became superintendent of Horton's company. Immediately thereafter steps were taken to embody the perfected invention in concrete form, the result being that about the middle of October fuses of a commercial type were successfully tested. In November Horton actually manufactured and sold a small line of these fuses, and in July, 1904, after the Board of Fire Underwriters had issued their rules he manufactured them in large numbers. Mr. Puckett, who is an absolutely disinterested witness, fully corroborates Horton as to what took place at Morenci in 1901, and his testimony is definite and convincing. He was asked on cross-examination whether Horton requested him as purchasing agent to procure any fuses like those Horton had described, and answered: The matter was discussed and we wondered if there was anything in the market like it, and we both decided that there was nothing on the market like that, and that if we secured that fuse we would have to make it or have it made. The witness also explained satisfactorily why nothing was then done toward making such a fuse. He further testifies that the sketches Horton made at the time remained on his desk for several days. Several other witnesses testified in corroboration of Horton, but we do not deem it necessary to devote more time to the analysis of testimony. The only question involved in this appeal is whether Horton was sufficiently diligent. In a case like this where it conclusively appears that the party, against whom the rule of diligence is sought to be enforced, was in fact the prior inventor, the facts and circumstances surrounding him at the time of his alleged lack of diligence will be carefully considered before he will be deprived of the fruits of his discovery. (Woods v. Poor, C. D., 1907, 651; 130 O. G., 1313; 29 App. D. C., 387.) As above stated, Horton soon after the establishment of his plant at Detroit, Mich., conducted experiments on inclosed fuses and demonstrated the practicability of the idea which he had disclosed to Puckett in 1901. Everything he did after this demonstration indicates a desire and intention on his part to give to the public the benefit of his discovery at the earliest practicable moment. We do not regard it as at all strange or unusual that he did not proceed with greater haste. Davis did not enter the field until August, 1903, at which time Horton had fully disclosed his invention to several witnesses, had demonstrated its entire practicability, and being skilled in the art was fully aware of its value. He had made arrangements for tools with which to manufacture the different parts of fuses embodying his invention, and, as evidence that he was acting in good faith, we find that immediately upon the completion of these tools, which was not long after Davis entered the field, he actually constructed fuses fully embodying the issue. All this occurred at a time when, so far as the record discloses, he knew absolutely nothing of Davis or his invention. We agree with the tribunals of the Patent Office that Horton was reasonably diligent, and that he is entitled to the award of priority. The decision of the Commissioner is affirmed, and the clerk of the court will certify this opinion and the proceedings in this court to the Commissioner of Patents, in accordance with law. [Court of Appeals of the District of Columbia.] KINSMAN V. STROHM. Decided June 9, 1908. 136 O. G., 1769; 31 App. D. C., 581. INTERFERENCE-PRIORITY-APPEAL TO COURT-STATUS OF REVIVED APPLICATION. On an appeal on priority the court will not review the findings of the Commissioner upon the sufficiency of a showing to support a petition for the reinstatement of an abandoned application where there appears to have been no abuse of power on the part of the Commissioner. Mr. C. S. Champion, Mr. C. J. O'Neal, and Mr. C. L. Mooney for the appellant. Mr. T. A. Connolly and Mr. J. B. Connolly for the appellee. ROBB, J.: In this case Kinsman, the junior party, seeks to reverse the decision of the Commissioner of Patents awarding priority of invention to Strohm, the senior party. The issue is contained in the following counts: 1. The combination, substantially as described, with an electrically-propelled vehicle and a driving-motor therefor, of a manual device acting on a controllingswitch for governing the speed or power of such electric motor, an electric switch governing the action of said motor and controlled independently of said manual device and irrespective of the position of the latter, an electromagnet governing said switch, and means upon the permanent way for bringing said magnet into operation when the car or vehicle passes a given point. 2. The combination, substantially as described, with an electrically-propelled vehicle and its propelling electric motor, of a manual device such as a handle, acting on suitable electric controlling apparatus for governing the speed or movement of the motor at will, an electric switch controlled independently of said manual device, and governing the circuit of said motor, an electric magnet carried by said vehicle and governing said switch, and means upon the road-bed or permanent way for governing the circuit of said magnet. 3. The combination, substantially as described, with an electrically-propelled vehicle and its propelling-motor, of a manual device such as a handle acting on an electric controller for governing the speed or power of said motor, an electric switch governing a circuit of said motor and controllable independently of said manual device, an electromagnet energized from the road-bed when the vehicle passes a certain point thereon for governing said switch, and a braking appliance brought into operation simultaneously with the action of said independently-controllable switch, as and for the purpose described. The subject-matter of this interference is a means for automatically stopping electrically-propelled vehicles. Strohm has taken no testimony, and is, therefore, restricted to his filing date, August 29, 1891, as his date of conception and reduction to practice. In Kinsman's preliminary statement he alleged conception of the invention in 1886 or 1887, and reduction to practice of certain elements of the invention in 1890. The Patent Office thereupon objected to this preliminary statement on the ground that it was too indefinite. An opportunity was given Kinsman to amend but he failed to embrace it. He testifies that between May, 1890, and November, 1891, he experimented with different forms of automatic stopping devices on the Fitchburg Railroad at Ayer Junction, Mass. These devices were all used in connection with a steam-locomotive. (See Kinsman v. Kintner ante, 508; 136 O. G., 1532.) He says, however, that he then had a spindle or wheel made for use in electrical experiments, and was thereby enabled to determine how long a contact was necessary to energize a magnet designed to operate the automatic cut-off of the power-circuit. The Commissioner says of this testimony: Upon the questions of conception and disclosure the testimony of Kinsman is supported by two witnesses, a brother, A. M. Kinsman, and J. B. Collins, the latter having been the one selected by Kinsman to assist him in carrying out his early experimental work. Most of the testimony of Collins relates to installations of signaling systems on steam-roads which involved cutting off the steam and the application of brakes, while the issue specifically calls for a combination of electrically-operated devices of an electrically-equipped system. He states, however, that Kinsman had the idea of adapting the same devices to electricallypropelled vehicles, and that under Kinsman's instruction he made a trolley wheel and harp for use in such combination. But this is the extent of the dis |