several times and were satisfied with its practical operation and utility. There is no room for mistake on their part. The loss or breaking up of the machine after these successful tests and the delay in applying for a patent are the only circumstances tending to cast the least suspicion upon the truth of Wurts's claim, and these, without regard to their attempted explanation, are not of sufficient weight in themselves to warrant us in refusing credence to the evidence of invention and reduction to practice. The same may also be said of the circumstance that between the time of this invention and the application for patent thereon Wurts took out other patents for lightning-arresters and analogous devices. We cannot, therefore, agree with the opinion that the evidence on behalf of Wurts fails to establish reduction to practice. The invention was complete and produced the result sought to be accomplished by the inventor to his satisfaction and that of the skilled electricians who witnessed the practical tests that were several times made. These trials were made in connection with the working system of electric lighting used in the factory, though the device was never in fact incorporated into and made a part of that system or of any other working electrical plant. Still, if the competent witnesses who observed the trials closely are to be believed at all, the conditions were equally complete and satisfactory for the demonstration of the practical utility and value of the device. This we think was a compliance with the wellestablished rule in respect of reduction to practice. (Coffin v. Ogden, 50. G., 270: 18 Wall., 120; Gayler v. Wilder, 10 How., 471; Coffee v. Guerrant, C. D., 1894, 384; 68 O. G., 279; 3 App. D. C., 497; Colhoun v. Hodg son, C. D., 1895, 122; 70 O. G., 276; 5 App. D. C., 21, 23; Shellaberger v. Sommer, 24 Wash. L. Rep., 136; 1 Rob. on Pats., sec. 128.) In our judgment the difficulty with the proofs of reduction to practice is not that they show an abandoned experiment, but rather that they tend to show an abandonment to public use. The machine as made for trial was more than a model. It was complete in all its parts. Its trial demonstrated its capacity for general use without addition or improvement, and it was not laid aside for attempted improvement or as imperfect in its action. With other cut-out devices under manufacture and sale it may be that the Westinghouse Company did not consider it worth while to manufacture this one and to apply for a patent upon it, and was only stimulated to the action taken after the lapse of two years from the successful trials of the device by the practical efforts of Ilarrington in the same direction. That issue, however, is not in the case and can have no effect upon the sole question for determination, which is, who, as between Wurts and Harrington, must be regarded as the first inventor? Notwithstanding the commendable diligence of Harrington in endeavoring to bring the invention into public use after his conception of it and the negligence of Wurts in that respect we are constrained by the view taken of the evidence and the law applicable thereto to hold that Wurts is entitled to priority. For the reasons given the decision of the Acting Commissioner must be reversed, and it is so ordered. The proceedings and decision herein will be certified to the Commissioner of Patents for his action in the premises, in accordance with the terms of the law. [Court of Appeals of the District of Columbia.] SHELLABERGER v. SCHNABEL. Decided February 10, 1897. 79 O. G., 339. 1. INTERFERENCE-APPEAL TO COURT. In an interference of two issues, one of which the Commissioner decided was made by one contestant and the other by the other, when he also holds in the same decision that the two are structurally and patentably different, the party adjudged the prior inventor has no ground of appeal, since if the Commissioner was right in his holding the first issue covers all that there is patentable, and if the Commissioner is not right his mistake does not injure such prior inventor. 2. SAME-SAME. When the Commissioner decides that one of two issues of an interference was invented by one party and the other by the other party, but that the second issue has no patentable novelty to distinguish it from the one first invented, an appeal from his decision awarding priority of the second issue amounts to nothing more than a moot case and should not be adjudicated. 3. INTERFERENCE-NON-PATENTABILITY-DISSOLUTION. When the Commissioner has determined that there is no patentable invention in issue, that determination is a virtual dissolution of any interference, for there cannot be interference unless there is at least prima facie patentable novelty. Messrs. R. S. & A. P. Lacey for the appellant. Messrs. Pennie & Goldsborough for the appellee. MORRIS, J.: This is an appeal from the decision of the Commissioner of Patents in a case of interference. The alleged invention in issue between the parties is described in two counts as follows: 1. A wire fencing-strip consisting of two continuous parallel strands, and a continuous zigzag cross-wire intersecting said strands alternately and intertwisted with the strands at the points of intersection, substantially as specified. 2. The combination with the parallel strands of a zigzag cross-wire intersecting said strands and twisted therewith, alternately in opposite directions, the intermediate portions of the cross-wire passing alternately from one side of the plane of the strands to the other, substantially as specified. In the matter of the first issue, which in the record is frequently called the "over-and-over construction," the cross-wire is wound continuously over the two parallel wires. In the second, which is designated in the record as the "over-and-under construction," the cross-wire is wound alternately over and under the two continuous parallel strands. The Commissioner in his opinion holds the second construction to be merely a structural modification of the first and not to involve patentable invention. Both by the Examiner of Interferences in the Patent Office and by the Board of Examiners-in-Chief judgment of priority was awarded to Shellaberger, and their decision was affirmed by the Commissioner of Patents, (C. D., 1894, 95; 68 O. G., 658.) Yet the anomaly is presented of an appeal by the party in whose favor a decision has apparently been rendered. But the anomaly, which is more apparent, perhaps, than real, arises from the fact that there are two issues in the interference; that as to the first of these the appellant, Shellaberger, was found by all the tribunals of the Patent Office and is conceded for all present purposes by the appellee to have been the first inventor, but that as to the second issue, while the Examiner of Interferences and the Board of Examiners-in-Chief included that also in their award of priority to Shellaberger, the Commissioner of Patents in his opinion found it to have been original with the appellee, Schnabel, yet at the same time held that it presented merely a structural and not a patentable difference from the first issue and that only one patent should be issued, and that to Shellaberger, and he specifically affirmed the decision of the Board of Examiners. Shellaberger appeals from his decision on the ground that he should have been held entitled to priority for the second issue as well as for the first. Schnabel does not appeal. In fact, in the brief filed on his behalf he takes the ground that neither issue is patentable and that both had been anticipated by other inventions. We do not see upon what ground this appeal can be sustained or what need there was of taking it. Schnabel, the appellee, can have no patent. The declaration of the Commissioner that he was the first inventor of the construction specified in the second issue cannot avail him. The patent is awarded to Shellaberger, and his specification of his invention, as stated in the two issues now before us, it is presumed will be attached to the patent and will protect him against all the world as far as he is entitled to be protected by such patent. When he receives his patent covering and reciting specifications of both the issues, what does it matter to him that in the course of the proceedings the Commissioner gave expression to the opinion that Schnabel and not Shellaberger was the first actually to construct the matter of the second issue? If the Commissioner was right in his ruling that the difference between the two issues was only of a structural character, then the appellant, being undoubtedly the inventor of the first, which preceded the second in point of time, must be held both in law and in fact to have been the inventor also of the matter of the second issue. If, on the other hand, the Commissioner was wrong in that ruling and there is patentable novelty in the second invention, yet that mistake does not injure the appellant, for the appellee gets no benefit from it, and the appellant, by the inclusion of it in his patent as one of the specifications of his claim, derives all the advantage from it that would accrue from an admission by the Commissioner of its patentability as a separate and distinct invention. In no aspect of the case, therefore, do we see how the appellant is prejudiced by the decision of the Commissioner. Another consideration which we should not ignore is this: The appeal before us is only from so much of the decision, or, rather, of the opinion, of the Commissioner as awards priority to the appellee in the matter of the second issue. While we do not find from an examination of the record that the Commissioner in contemplation of law made any such award, yet, assuming for the present purpose that he did so, we do not see that there is anything in the cause upon which we can now act. The Commissioner having held that the second issue presents no patentable novelty to distinguish it from the first, it is plain that the claims of the parties before us in interference constitute no more than a moot case, and courts of justice are not organized to adjudicate such cases. In all cases of interference patentable novelty is always presumed. The presumption may be only a prima facie presumption, and it may be that even after a final decision in interference a patent may be refused to the successful party for want of novelty in his alleged invention; but when the Commissioner has determined that there is no patentable invention that determination, as long as it stands and to the extent to which it goes, must be regarded as a virtual dissolution of any previously declared interference, for there cannot be interference in the legal sense unless there is at least prima facie patentable novelty. Certainly it is not proper that we should proceed to determine rival claims of interference upon appeal when the Commissioner has already determined that, no matter which way we decide, no patent can be issued for the special matter in dispute, inasmuch as he regards it as destitute of patentable novelty. If either of the parties is aggrieved or his presumed rights jeopardized by the Commissioner's determination in that regard, he is not without remedy; but it is not apparent to us that we can administer that remedy in the present proceeding. We are of opinion that the decision of the Commissioner in this case must be affirmed, and it is accordingly affirmed. The clerk of this court will certify the proceedings of this court and this decision to the Commissioner of Patents, to be entered of record in his Office, according to law. [Supreme Court of the United States.] IN RE HIEN. Decided April 12, 1897. 79 O. G., 507. 1. APPEALS-DELAY IN TAKING-MANDAMUS. Where an appellant delayed in applying to the Court of Appeals for the District of Columbia beyond the time provided in the rules of said court, in consequence of which said appeal was dismissed, Held that a writ of mandamus to compel the Court of Appeals to entertain the appeal will not lie to the Supreme Court of the United States. 2. SAME COURT OF APPEALS-POWER TO MAKE RULES LIMITING THE TIME OF APPEALS. Apart from the general rule that courts have power to make reasonable rules not conflicting with express statutes, the Court of Appeals was duly authorized by statute to make rules limiting the time of appeals from the decisions of the Commissioner of Patents. 3. SAME TIME OF APPEAL MAY BE Modified BY RULE MADE AFTER DECISION APPEALED FROM. The fact that a rule of the Court of Appeals relating to the time in which an appeal must be taken was promulgated after the decision appealed from is not controlling as to the appeal, since the right of appeal is not a vested right, but one which may be altered by statute or by rule of court. 4. SAME-COURT OF APPEALS-RULES FOR TAKING APPEALS NOT GOVERNED BY SECTION 4894, REVISED STATUTES. The Court of Appeals for the District of Columbia has authority to limit the time for taking appeals, and there is no restriction by reason of section 4894, Revised Statutes, which has reference solely to the abandonment of an application by failure to prosecute. 5. SAME-GANDY v. MARBLE Construed. The decision of the Supreme Court in Gandy v. Marble, (C. D., 1887, 413; 39 O. G., 1423,) in which it was held that a bill in equity under section 4915, Revised Statutes, was sub modo a branch of the application and governed as to laches by section 4894, Revised Statutes, had nothing to do with the time in which an appeal from the decision of the Commissioner of Patents must be taken. 6. SAME SECTIONS 4911 And 4915-BUTTERWORTH v. HOE CONSIDERED. The Supreme Court in Butterworth v. Hot, (C. D., 1884, 429; 29 O. G., 615,) in considering the difference between an appeal under section 4911, Revised Statutes, and a bill in equity under section 4915, Revised Statutes, held that the latter is a proceeding according to the ordinary course of equity. This being so, section 4894, Revised Statutes, is inapplicable to the case of an appeal from the decision of the Commissioner of Patents. Mr. W. H. Singleton and Mr. F. W. Ritter, Jr., for the petitioner. Mr. Chief Justice FULLER delivered the opinion of the Court. |