The witnesses testified that the device operated successfully and was practical; but the Court said, without denying that it 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. It was held that the stopper was not subjected to the same strain as it would have been in transportation, and therefore the use amounted to no more than an abandoned experiment. In the present case, as in that under consideration, the invention was not subjected to the strain and conditions of practical use. In the case of Washburn & Moen Mfg. Co. v. Beat 'Em All Barbed Wire Co. (C. D., 1892, 299; 58 O. G., 1555) the Supreme Court held that since the device was made, but afterwards lost, it must be regarded as an abandoned experiment, for if the maker had considered it of any practical value he would have applied for a patent on it, since he applied for patents on other devices subsequently. In Deering v. Winona Harvester Works, supra, the Court said: Granting the witnesses to be of the highest character, and never so conscientious in their desire to tell only the truth, the possibility of their being mistaken as to the exact device used, which, though bearing a general resemblance to the one patented, may differ from it in the very particular which makes it patentable, are such as to render oral testimony peculiarly untrustworthy; particularly so if the testimony be taken after the lapse of years from the time the alleged anticipating device was used. If there be added to this a personal bias, or an incentive to color the testimony in the interest of the party calling the witness, to say nothing of downright perjury, its value is, of course, still more seriously impaired. This case is an apt illustration of the wisdom of the rule requiring such anticipations to be proven by evidence so cogent as to leave no reasonable doubt in the mind of the court that the transaction occurred substantially as stated. Admitting the honesty of the witnesses on behalf of Wurts-and there is nothing to indicate that they have not stated the facts to the best of their knowledge and belief-still I do not think that Wurts has made out a case of practical use beyond a reasonable doubt. In view of the facts stated and the decisions noted, his efforts must be considered only as abandoned experiments. The testimony of all of the witnesses as to the fact that the apparatus embodying Wurts's invention was complete and on sale is based almost entirely on the fact that the room in which it was exhibited was ordinarily used to contain only completed devices ready for the market. This fact is not a sufficient basis for this conclusion, since Scott states that this was not the universal rule, but only generally followed, and states, as does another witness, that changes would have been necessary before the device could be sold for practical use. Wurts's own acts raise a strong presumption that what he did amounted only to an abandoned experiment, and I do not think any evidence sufficient to overcome this presumption has been produced. The decision of the Examiners-in-Chief is reversed and priority adjudicated in favor of Harrington. EX PARTE STOCKTON. Decided April 21, 1897. 79 O. G., 683. COPIES OF RECORD-OFFICE PRACTICE. It is the practice of the Office to refuse to give to strangers to the record copies of pending applicatiops without the consent of the applicants or assignees. ON PETITION. IN the matter of the petition of Charles S. Stockton for a certified copy of the file-wrapper and contents of the application of Thomas Broadbent, for a pedal for velocipedes, Serial No. 480,325, filed July 13, 1893. FISHER, Acting Commissioner: This petition is brought by Messrs. Riker & Riker, attorneys, presumably for the use of the defendant in the case of Warwick v. Stockton. The request for copies is supported by the oath of one of the attorneys, and in addition there is presented a certificate of John R. Emery, one of the vice-chancellors of the State of New Jersey, to the effect that the said copies "are required for the purpose of being offered in evidence" in the suit referred to. Nothing has been submitted which shows or tends to show that the applicant, Broadbent, is interested directly or indirectly in the outcome of this suit, although he has made no opposition to the grant of the present petition. It has long been the practice of the Office to refuse to give to strangers to the record copies of pending applications without the consent of the applicants or assignees, (see Rule 17,) and this practice is thought to be in accordance with public policy. In such cases as this the question naturally arises why the defendant, Stockton, should not call Broadbent as a witness and ask him to produce copies of his pending application, or why he should not obtain the formal consent of said Broadbent that such copies be given. The ruling of the Supreme Court of the District of Columbia in The United States, ex rel. United States Electric Lighting Company, v. Commissioner of Patents (U. D., 1891, 271; 54 O. G., 267) is instructive in this connection. The petition is denied. EX PARTE OLAN. Decided April 14, 1897. 79 O. G., 861. 1. DIVISION-MANUFACTURE OF INCANDESCENT LAMPS-LAMPS AND EXHAUSTING APPARATUS MAY NOT BE JOINED. In an application for the manufacture of incandescent lamps division was required between the part relating to the lamp and that relating to the exhausting apparatus, since there is not such an interdependence between the two as would warrant their being joined in one application. DECISIONS OF THE COMMISSIONER OF PATENTS. 2. DRAWING MULTIPLICITY OF FIGURES. 25 Objection to a drawing that an unnecessarily large variety of forms is shown should not be insisted upon when it appears that the several figures relate to and show modifications of the generic invention claimed. 3. PRACTICE-FORMAL REQUIREMENTS AFTER APPEAL. The Examiner's action in making formal requirements after the case had been decided by the Examiners-in-Chief and the Commissioner on appeal was regular and in accordance with Rule 25. ON PETITION. MANUFACTURE OF INCANDESCENT LAMPS. Application of Johan W. Th. Olan filed March 13, 1893, No. 465,761. Mr. J. W. Th. Olan, pro se. FISHER, Acting Commissioner: This is a petition taken from the action of the Primary Examiner requiring division as between the exhausting apparatus and the incandescent lamp, and also requiring certain changes in the drawings. The requirement that Figures 1, 2, 21, 22, and 23 (original Figs. 3, 4, 28, 29, and 30) be canceled is proper, since these figures are manifestly unnecessary to a full disclosure of the invention. Objection is made to other figures of the drawings, it being stated that it is unnecessary to show such a variety of forms of the device, and the applicant is required to reduce the number of forms and to show the parts on a larger scale. This requirement should not be insisted upon, since all of the figures relate to the invention claimed, and the applicant should be allowed to show modifications if they all contain the generic features. As to the Examiner's requirement for division, it may be said that Sheets 2 and 3 of the drawings and as much of the specification as relates thereto are for an electric light, while Sheets 5 and 6 cover apparatus for exhausting the bulbs. The Examiner holds that this apparatus could be used in exhausting any electric-light bulbs, and that the bulbs could be exhausted by any kind of apparatus in common use for this purpose, and that there is therefore not such an interdependence between the electric light and the exhausting apparatus as would warrant their being joined in one application. With this conclusion I agree, and the Examiner's requirement that division should be made between the matter covered by claims 21 to 34 and that covered by the remaining claims is affirmed. Parts of the petition and the applicant's brief are directed to the right of the Examiner to make the requirements noted after this case had been decided by the Examiners-in-Chief and the Commissioner on appeal on the merits. Rule 64, in force prior to February 9, 1897, and Rule 25, in force since that time, provide that "only in cases presenting patentable substance will requirements in matters of form be insisted upon." This rule renders it necessary in many cases that matters of form be acted on after a final decision upon the merits, and therefore the Examiner's action was perfectly regular. If a divisional application covering the exhausting apparatus is filed, it will be at once taken up for consideration. As the claims therefor have already been passed upon favorably by the Commissioner, they will be allowed at once, unless some reason not disclosed by the record should appear. To the extent above indicated the petition is granted. ROBERTS v. BRINKMAN. 1. INTERFERENCE-PRIORITY. Decided October 30, 1896. 79 O. G., 1189. Held that no facts are proved to justify the virtual disregard of Brinkman's patent or to justify a finding that Roberts was the prior inventor. 2. SAME-FRAUD-TRUE INVENTOR-OFFICE PRACTICE. Where fraud has been attempted upon a true inventor, and where another not the inventor has attempted to surreptitiously obtain a patent, the Office will go to the limit of its jurisdiction, upon clear and convincing proof, to right such wrongs. APPEAL from Examiners-in-Chief. FIREPROOF PARTITION. Application of Peter Roberts filed February 15, 1894, No. 500,210. Patent granted Sebastian G. Brinkman April 10, 1894, No. 518,050. Mr. Jas. T. Law and Mr. C. V. Edwards for Roberts. SEYMOUR, Commissioner: This case comes up on appeal by Roberts from the decision of the Examiners-in-Chief awarding priority of invention to Brinkman on the following issue: 1. The combination of grooved uprights with horizontal bars having double flanges and with blocks engaged by said flanges. 2. The combination of grooved uprights, blocks arranged in courses between the uprights, and I-bars between the courses engaging the said uprights and the top and bottom of the blocks. Preliminary to hearing the argument of this case upon appeal a motion was heard to reopen the case, made by Roberts for the purpose of taking the testimony of A. M. Cerf. To what Cerf would testify is not known, for the motion is based upon an alleged letter of his under date of September 28, 1896, addressed to Roberts, the purport of which is that Cerf has at his command irrefragable proof and testimony which is indispensable, and, as he says, will be the saving of Roberts's case in the end. He demands $500 in hand paid for the same. Upon consideration this motion was denied, and the hearing proceeded upon the merits of the case. Upon December 26, 1893, Brinkman made application to this Office for a patent upon the construction covered by this issue, and on April 10, 1894, a patent therefor was duly issued to him. On February 15, 1894, Roberts applied for a patent upon the same construction; hence this interference. Brinkman and Roberts were frequently engaged in making elevatorshafts and skylights in somewhat the relation of contractor and subcontractor, but the details of their connection are not necessary to be stated. A section of an elevator-shaft having the fireproof qualities sought to be attained in this improvement was made by Brinkman in his shop from material bought by him, and the completed structure set up in his shop before it was seen by Roberts. It was afterward taken down and set up for a time in Roberts's shop, and upon some dispute arising between them as to a proposed common interest in the construction of similar elevator-shafts the section just referred to was taken away by Brinkman from Roberts's shop without objection. The decision of the Examiners-in-Chief in disposing of this case treats of certain phases of the case which need not be repeated here. The question between these parties may be narrowed to the question whether Brinkman surreptitiously obtained a patent in his own name for that which was in fact invented by Roberts or by Roberts and Brinkman jointly. I have examined this record for the purpose of seeing whether prior to the time when Brinkman made application for this patent there was any agreement between the parties touching the taking out of this patent. It is certain that there were conversations respecting the construction of elevator-shafts. There seems to have been some understanding about the construction of this display-shaft, which was built to be set up in their shops to be exhibited to patrons. At question 15 Roberts says that it was understood between them that Brinkman should make the ironwork of the section, including the blocks, and Roberts the rest, and that they were to build those shafts together, Brinkman doing the ironwork and blocks and Roberts the rest; but there is nothing in this improvement the origin of which is now in dis. pute but the ironwork and blocks, and the ironwork and blocks are referred to by Roberts in several places as the part which Brinkman was to control. It is not by any means clear, but is strenuously disputed, that Roberts gave Brinkman the instructions from which this display shaft was built; but scrutinizing his own story, wherein Roberts claims that he gave the instructions to Brinkman, they were that he build his section of the shaft, the iron and the block part of it-that is, the whole of this improvement. Whatever the arrangement was between them it did not cover any payment by Roberts for the material of this work or for the work, although it appears to have been ordered by Brinkman in the first place in the name of Roberts and Brinkman. |