it is contended by Tyler that in this operation the last is not subjected to the strain which occurs in other operations in shoemaking, notably in the leveling process, wherein the last is subjected to a pressure of from five hundred to one thousand pounds. The parts of the last are attached by a hinge made of a thin piece of leather tacked to the parts, and was therefore probably never strong enough for use in the leveling process. This is not disputed by Arnold; but he contends that the use in trimming was a reduction to practice and that there was no necessity to use it also in the leveling process.

From the structure of the hinge and the testimony it is evident that the last was intended only as a temporary and experimental device and not as one that was to be used practically in any sense except as a test. While reduction to practice may be made with an experimental device, it must be by practical and successful operation, and must be in such use as the device would have to stand when manufactured and sold.

The fact that Arnold was a shoe-manufacturer, and, according to his own testimony, recognized the need of some last to perform the functions performed by that covered by the issue, and still, in view of this need in his own shops, he laid aside this last made in 1889 for about four years and did nothing in the way of putting such lasts in use in his factory, raises a strong presumption that the test of the last in 1889 was not a success. It is not reasonable to suppose that he would have delayed so long in having these lasts made if the experiments in 1889 had fully established the practicability and advantages of his device. It is noticeable that as soon as he obtained Tyler's lasts he at once put them into use in his factory.

In the case of Putnam v. Hollender (C. D., 1881, 246; 19 O. G., 1423) it was shown that one bottle-stopper embodying the invention was used for a time, but was never sent out from the shop in bottles. The Court said, without denying that the stopper embodied the invention:

Yet the new structure could not have been a satisfactory one to be used for the purpose of replacing corks or in lieu of adopting the Schlesting stopper and to be sent out with bottles of beer, or Otto would have had more of them made and would have put them to the use of transportation.

In the case of Burr v. Ford (C. D., 1895, 120; 70 O. G., 275) it was shown that Burr had made a device for coupling iron hoops embodying the invention and had placed it on a wooden block and on an empty tank, but had never actually used it on a tank filled with water, where it is subjected to more strain than on an empty tank. After this use the device was laid aside and never used again until his opponent's device was on the market, and it was held by the Court that the use was merely an abandoned experiment.

According to Arnold's own testimony he was trying to devise means for making his 1889 last entirely practical during the four years in which he apparently did nothing. If his tests had been thoroughly successful, there would have been no necessity for doing anything else to make it practical, and there would certainly be no such difficulty as

would require such a long delay in view of the fact that he was possessed of ample means and had every incentive to have such lasts made as soon as possible for use in his factory.

The last was evidently intended for use in the lasting and leveling processes, since it was provided with holes for the insertion of a spindle, and it is now stated that the main advantages of the last are due to its adaptation for use in all of the processes of shoemaking. In view of this fact it would not be natural for Arnold to lay it aside after testing it in one operation and not also test it in the other processes for which it was designed if his first test was satisfactory.

The fact that Arnold went to a patent attorney and asked him as to the patentability of the device is immaterial to the question of reduction to practice, since it is often the case that applications for patents are made where there has been no reduction to practice, and in some cases even where there has been no model made.

Considering the 1889 last as an abandoned experiment, Arnold must be held to be the first to conceive, but the last to reduce to practice, and with this view of the case he cannot prevail, since he has not exercised that diligence which is required in such cases. It was not until a year after Tyler had reduced the invention to practice that Arnold did anything in the way of embodying his invention in a practical device.

For the reasons given it is held that Tyler is the first inventor, and therefore the decision of the Examiners-in-Chief adjudicating priority of invention in favor of Arnold is reversed.

CUSHMAN v. LINES.

Decided April 6, 1897.

79 O. G., 335.

INTERFERENCE-DESIGN-OIL-CAN-DIVERSITY.

The contestant Lines is entitled to the design of figure 3 and contestant Cushman to that of fig. 2. (Modifying Cushman v. Lines, C. D., 1896, 62; 77 O. G., 153.)

ON MOTION.

DESIGN FOR AN OIL-CAN.

Application No. 502,446 of J. W. Cushman filed March 5, 1894. Design Patent No. 23,042 granted John Lines February 6, 1894.

Messrs. Baldwin, Davidson & Wight for Cushman.

Messrs. Earle & Seymour for Lines.

SEYMOUR, Commissioner:

Conforming to the direction of the Court of Appeals of the District of Columbia, (post, —; 78 O. G., 2051,) the decision of the Commissioner

in this case of August 10, 1896, (C. D., 1896, 62; 77 O. G., 153,) is modified by annexing thereto the following:

It is further considered that Lines is the first inventor of the design designated in fig. 3 and is entitled to hold the patent which has been issued to him for that design; but Cushman is entitled to priority for the design designated in fig. 2, and to a patent therefor in due course. The design shown in fig. 2, in the view I take in this case, does not satisfy the issue herein.

It does not seem to be necessary to certify the case back to the Court of Appeals, as requested by Cushman, in that upon the modification of my decision in conformity with the decision of that court there appears to be a final disposition of the case. The considerations which might permit of reargument or reconsideration thereof in the Court of Appeals should be addressed to that court, and if the question is there permitted to be raised the case does not require to be certified back.

WURTS v. HARRINGTON.

Decided April 29, 1896.
79 O. G., 335.

1. INTERFERENCE-REDUCTION TO PRACTICE-DEGREE OF EVIDENCE. When complete reduction to practice amounts to two years' public use, the fact of such reduction must be established by evidence of the same degree as that required in evidence setting up the bar of public use.

2. SAME-EXPERIMENTAL USE-ABANDONED EXPERIMENT.

The fact that only one device was made and operated for only a short time and that it was then laid aside and not used again until other parties were making and advertising the device raises the presumption that such use was merely experimental and that what was done amounted to no more than an abandoned experiment.

3. SAME-EVIDENCE-REDUCTION TO PRACTICE.

The fact that in a room ordinarily used to contain complete devices ready for the market there was exhibited a certain device is not conclusive proof that such device was complete and on sale.

APPEAL from the Examiners-in-Chief.

AUTOMATIC CIRCUIT-BREAKER.

Patent granted Alexander Wurts June 27, 1893, No. 500,456. Application of Walter E. Harrington filed February 24, 1891; renewed February 8, 1894, No. 499,537.

Messrs. Terry & Mackaye for Wurts.

Mr. Francis T. Chambers for Harrington.

FISHER, Acting Commissioner:

This is an appeal by Harrington from the decision of the Examinersin-Chief adjudicating priority of invention in favor of Wurts.

Di

DECISIONS OF THE COMMISSIONER OF PATENTS.

The issue is as follows:

21

A fixed contact-point, a movable conducting part making normal contact therewith, a wire of fusible metal in shunt around said parts, and means whereby the parts are automatically separated on the occurrence of an abnormal current.

It is satisfactorily proven that Harrington made an apparatus embodying the invention on December 4, 1890, showed this apparatus to others, and placed it in an electric circuit in the car-house of the electric railway at Atlantic City. This apparatus was used practically to take the place of the fuse-wire which had been depended on previously to protect the circuit. On February 21, 1891, he filed his complete application for a patent, and since that time has been active in advertising his device and placing it on the market.

Wurts's complete application was filed October 29, 1892, sometime after Harrington's invention had been extensively advertised and described in at least one text-book.

Wurts testifies on his own behalf that a device embodying his inven tion was made, probably from the drawing marked "Wurts' Exhibit, Wurts' Drawing," during the early part of 1890, and was exhibited to the public in the exhibition-room of the Westinghouse Company and operated successfully a number of times. This use of the device occurred more than two years before his application was filed.

C. F. Scott testifies that he saw a device "similar in appearance to the sketch" tested in a room of the Westinghouse Company which was used as an exhibition-room. In answer to question 10, in regard to the use of this exhibition-room, he states that—

the apparatus in the room was at an earlier period almost entirely standard commercial apparatus;

but in answer to question 11 he says:

There was no regular rule about the use of this room, but what I have just stated was the ordinary custom in connection with it.

He goes on to say that his impression was that the device in question was placed there after its satisfactory operation had been established, and not for experiment; but this impression is merely his own idea, since he states himself that he does not know whether the device was previously tested or not. There is, in fact, no direct testimony to the effect that the device was ever tested in any way before being placed in the room referred to. Scott states in answer to redirect crossquestion 44 that he did not intend to convey the meaning that the apparatus as exhibited was a completely-constructed device in all particulars, such as would be sold from the company's warehouse. From this answer it appears that the apparatus was not on exhibition as showing a complete device which would be furnished to any customers, as is contended by Wurts.

A. S. Morris testifies that he saw the device in operation in the exhi bition-room, and that it operated successfully. He also states that

things in that room were on the market, and that the device in question was as complete and as well finished as cut-outs put on the market by other companies at that time.

F. P. Mann testifies that he saw the apparatus in operation in the exhibition-room, and describes the structure of the device.

It appears that there was only one cut out made in accordance with Wurts's invention; that this cut-out was operated in the exhibitionroom of the Westinghouse Company a number of times during a period of about three weeks in the spring of 1890, and that this apparatus was then laid aside and was finally lost or destroyed. It appears also that at that time, and also during the period following, Wurts was engaged in experimenting with cut-outs of various kinds, and applied for and obtained several patents on cut-outs between the date of using the device, as noted above, and the date of filing his application for the patent involved in this interference.

The device was never applied to practical use in an electric system, but was only operated by short-circuiting the current from a dynamo, as would naturally be done in experimenting with an appliance of this character.

Wurts contends that the device was fully and completely reduced to practice when operated as described by the witnesses, and that the question of his delay in applying for a patent is not material, since it could not in any case give any rights to Harrington. On the other hand, Harrington contends that the acts of Wurts show that what was done must be regarded as an abandoned experiment and not a reduction to practice. If it is regarded as a complete reduction to practice in the way contended by Wurts, it must necessarily be regarded as public use and sale of the device more than two years before his application was filed. For this reason I think the use of the device as claimed must be established by the same degree of evidence as is required to establish public use to defeat a patentee of his rights. This must be established by evidence which does not admit of a reasonable doubt, as indicated by the Supreme Court in Deering v. Winona Harvester Works, (C. D., 1894, 672; 69 O. G., 1641.)

The fact that only one device was made and operated for only a short time, and that it was then laid aside and not used again until other parties were making the device and advertising it extensively, raises the presumption that the use was merely experimental and that what was done amounted to no more than an abandoned experiment. This presumption is much stronger and becomes almost conclusive when it appears that Wurts was experimenting in the same line and taking out patents for other cut-outs after laying aside the device which it is claimed embodied the present invention.

The facts considered by the court in Putnam v. Hollender (C. D., 1881, 246; 19 O. G., 1423) seem to be parallel to those in this case, for in that case it was shown that one bottle-stopper embodying the invention was used for a period of time, but was afterwards laid aside and lost.