every cash purchase of eight and one-third cents, or twelve with each cash purchase of one dollar. One hundred and fifty of the little green tickets are worth fifty cents in merchandise, and one hundred and fifty little green tickets are given with cash purchases aggregating twelve dollars and fifty cents. The interior of the book has the names and addresses and business of the merchants. On the back is the following: These coupons are accumulated from all cash purchases made at the stores named, and are then taken in quantities of one hundred and fifty or more to the store of Messrs. Minnis & Co., 362 King street, where an order for merchandise is obtained upon any one or more of these stores, and used in purchasing anything whatever that may be desired, the same as cash, for its face value. Our customers are requested to ask for these coupons, as they are of some value, and cost you only your patronage. Orders given to our patrons by our manager in redeeming these coupons will at all times receive prompt and polite attention at all the stores named in this card. Count your coupons, and divide the number that you have accumulated by three, and you will get the redeemable value in dollars and cents. For instance, one hundred and fifty coupons divided by three will be fifty cents. One hundred and fifty coupons will have been accumulated when you have spent $12.50 at any one or at all of the firms that are in this combination. A prize to the holder of the largest number of "The Merchants Co-Operative Coupons," brought in for redemption during the month of April from the 1st to 30th, inclusive, an eight-day chime-clock, with top ornament, worth $6, shown at Messrs. S. Thomas, Jr., & Bro., 257 King street. M. P. Refo, Secretary and Treasurer. Office 362 King street. This is like the pamphlet of the complainant in many respects. The only thing which distinguishes it from an ordinary advertisement is the method in this use of the coupons. By the method of complainant the coupons are used in obtaining certain specified articles on a premium-list. By the method used by the defendants the coupons can be used for the purchase of all articles without qualification or discrimination. This is not the method of the complainant. The evidence discloses three modes of using coupons in cash purchases, shown in three separate pamphlets. One is a coupon of this character in the Advertising Journal Company in the Periodical Book. Another is that of the complainant. The third is that of the defendauts. They all agree in general character-that is to say, advertising merchants and a plan of using coupons. The first plan contemplated the possession of a book of coupons by the purchaser. On his purchase the merchant tore out of the book the number of coupons provided, and when all the coupons were thus exhausted the holder of the book could make his purchase to the value of the coupons used. The second plan has been explained-the purchase, receipt of coupons on the purchase, delivery of coupons to a common agent of the vendors, and the use of the coupons in securing a premium from an advertised premium-list. The third plan is that of defendants-a purchase, receipt of coupons on the purchase, delivery to a common agent, and the use of the coupons in the purchase of any article whatever not exceeding them in value. All these methods resemble each other in their advertising features, which are not the subject of copyright, and differ essentially in method of using coupons. There is no infringement. The bill is dismissed. [Court of Appeals of the District of Columbia.] MUNSON v. CARPER. Decided January 15, 1897. 79 O. G., 160. RECORD-FAILURE TO PRINT. Failure to print transcript of record is ground under Court Rule 18 for dismissing an appeal. APPEAL from the Commissioner of Patents. Mr. R. H. Duncan for the appellant. Messrs. Graham & Low for the appellee. ALVEY, J.: This cause having been called for hearing in its regular order, and it appearing to the court that the parties have failed to print the transcript of record, it is therefore, in pursuance of the eighteenth rule of this court, now here ordered and adjudged by this court that this appeal be, and the same is hereby, dismissed. [Court of Appeals of the District of Columbia.] WURTS et al. v. HARRINGTON. Decided February 10, 1897. 79 O. G., 337. 1. INTERFERENCE-REDUCTION TO PRACTICE-REASONABLE DOUBT. In a controversy between two rival applicants the requirement that reduction to practice by the junior party before the senior should be established beyond a reasonable doubt is unduly onerous. 2. SAME-BURDEN OF PROOF-Patent AND APPLICATION. The fact that a patent has been issued irregularly during the pendency of an interfering application does not give it an advantage in the interference proceeding, and such proceedings should be governed by the ordinary rules of the courts of law in respect to the burden of proof. 3. SAME-SAME-SAME. Where a patent has been regularly issued and a question of anticipation or priority is raised in a suit for infringement or in proceedings in interference, a strict rule as to the proof required to overcome the patent, especially where the testimony from its nature and circumstances is open to suspicion, should prevail. 4. SAME-REDUCTION TO PRACTICE-COMPLETE EXPERIMENT. An invention that is complete and that produced the result sought to be accomplished by the inventor to his satisfaction and that of competent witnesses and which was tried in connection with a working system is a satisfactory reduction to practice, even though the device was ne in fact incorporated into and made a part of the system, if the conditions of the trial were complete and satisfactory. Messrs. Terry & Mackaye for the appellant. Mr. Francis T. Chambers for the appellee. SHEPARD, J.: The controversy in this case involves the priority of invention of an electrical device called an "automatic circuit-breaker." The issue in the controversy is defined thus: 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. The decision of the Examiner of Interferences was in favor of Wurts, and he was affirmed on appeal to the Examiners-in-Chief; but the Acting Commissioner reversed their decision and awarded priority to Harrington. Wurts's application was filed October 26, 1892, and he received a patent thereon June 26, 1893. He receives and, in fact, claims no advantage of position in the controversy on account of said patent, because the application of Harrington had been on file without abandonment since February 24, 1891. The evidence on behalf of Harrington shows and is conceded to show conception and reduction to practice by him between December 1 and 4, 1890. He was then an electrician in the service of an electric railway company at Atlantic City, N. J., and his device was tested and used in its operation. He took immediate steps also to bring his invention into commercial use, and it was advertised and noticed in periodicals devoted to electrical engineering, as well as described in a book description of electrical railways that was published late in the fall of 1892. There is no conflict in the evidence of the parties, and the decision must turn upon the credibility of the witnesses for Wurts and the weight to be given their testimony in support of his claim to invention and reduction to practice prior to that of Harrington, for upon him, as junior applicant, is cast the burden of proof. Wurts was at the time of his alleged conception, and is now, an electrician in the employ of the Westinghouse Electric and Manufacturing Company, of Pittsburg, Pa., for whose benefit his inventions were made and patented. He testified to the conception of the invention about July 3, 1889, and produced a note book, upon which no suspicion has been cast, showing a sketch and brief description of such a device, which, however, is not identical with his later drawing, that is shown on his application. He further testified that on April 29, 1890, he made a new drawing, from which his device was constructed in the machineshop of the Westinghouse Company. This drawing was produced and is the same as that shown in his application. It has indorsed on it the said date and the names of Wurts and of one Francis Petit Mann. He says that the device or machine was completed and finished in a suitable manner for commercial use and was placed in the exhibition-room of the company and there tested. It was operated in the presence of some of the employees of the company and of other persons and worked satisfactorily. When the new exhibition-room was built the machine was not taken there, but sent to the laboratory, where it remained some time and then disappeared. There is no evidence as to what disposition was made of it. Wurts says that he fully appreciated its value and reported it to the patent solicitor of the company, as usual, and urged application for a patent. He could not state why no application was made, unless because the company was then making and had on the market other devices used for the same general purpose. Francis Petit Mann, referred to above, was also an electrician employed by the said company and testified to having the drawing shown and explained to him by Wurts on April 29, 1890, and to having written his name and said date on the said drawing. He also saw the finished device, made in accordance with the drawing, and corroborated Wurts as to its operation with success in the exhibition-room of the company. Charles F. Scott and A. S. Morris, both electrical engineers in the employ of the Westinghouse Company, testified to the manufacture of the device substantially as represented in the drawings and to its frequent and successful trial in the exhibition-room of the company. This exhibition-room was one used for displaying the machines and devices of the company and was supplied with electrical connections, by which they could be operated in the presence of the electricians and often of the customers of the company. One other witness testified on behalf of Wurts, but there is nothing in his testimony of any value in this consideration. The device does not appear to have been used in a practical electric system, but was operated in the exhibition-room by "short-circuiting" the wires from a generator in use in the lighting system of the building. The current carried was equivalent to that usual in ordinary lightingcircuits, in which, among others, the device would be used, and the tests made were sufficient to demonstrate its practical utility. The testimony shows that it could readily be adapted to stronger currents, when needed, by enlarging the wire and increasing the contact area in due proportion. If the evidence in behalf of Wurts, briefly stated above, is true, it sufficiently shows invention and reduction to practice before the date of Harrington's. The witnesses are evidently men of intelligence and skill in their profession, and there is nothing in the record tending to impeach their character and credibility. But one of them, Wurts himself, can have any direct interest in the controversy. Of course witnesses are not discredited merely because they may be employees of the beneficiary of the Letters Patent. In respect of their credibility the Acting Commissioner says, in his opinion: Admitting the honesty of the witnesses for 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. Assuming that the "practical use" mentioned is the equivalent of "reduction to practice," and so meant, we think that the Acting Commissioner erred in concluding that it must be established beyond a reasonable doubt. Disregarding the patent obtained by Wurts, for the reasons before given, the controversy was between two rival applicants for patents for the same invention, and while the burden was necessarially cast upon the junior applicant it should not have been made so onerous in its requirements. There is no reason why in cases like the present the tribunals of the Patent Office should not be guided by the ordinary rules of the courts of law in respect of the burden of proof. Where a patent has been regularly issued and a question of anticipation or priority is raised in a suit for infringement or in proceedings in interference a different rule prevails. Of this character are the cases cited and relied on in the opinion of the Acting Commissioner. (Deering v. Winona Harvester Works, C. D., 1894, 672; 69 O. G., 1641; 155 U. S., 286, 301; The Barbed Wire Patent, C. D., 1892, 299; 58 O. G., 1555; 143 U. S., 275, 285; see also Coffin v. Ogden, 5 O, G., 270; 18 Wall., 120, 124; Wells v. Reynolds, C. D., 1894, 510; 69 O. G., 121; 4 App. D. C., 43, 48.) And the same rule applies in another class of cases equally distinguishable from this. (Morgan v. Daniels, C.D., 1894, 285; 67 O. G., 811; 153 U.S., 121, 124; Hisey v. Peters, C. D., 1895, 349; 71 O. G., 892; 6 App. D. C., 68, 71.) There is, too a very material difference in respect of character and weight between the evidence in support of priority in this case and that shown in the record in The Barbed Wire Patent and Deering v. Winona Harvester Works. The oral testimony in those cases of similarity between the patented devices and the claims in opposition, coming after great lapse of time and from persons generally if not entirely without special qualifications in such matters, was entirely without support in a single writing, sketch, drawing, model, or completed device. The evidence was plainly unreliable and received the following criticism in the opinion of the Court: 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. In the case at bar the original drawing made by Wurts was produced, attested by his own signature and that of another witness and bearing date April 29, 1890. It was either made at the time or has been manufactured since with fraudulent intent. This drawing furnished the foundation of the application for the patent. It was identified and explained by the witnesses under a careful and intelligent cross-examination. These were all intelligent and skilful electricians who had seen and understood the drawing at the time. They saw the device made up from the description in the drawing and witnessed the test of it |