Held that Fowler was the first to conceive of the invention, and under all of the circumstances proceeded with reasonable diligence to the construction of his machine.

2. SAME SUFFICIENCY OF Disclosure.

The specification and drawings of Dodge, while showing an adequate and full conception of the invention, Held insufficient to enable one skilled in the art, without other aids, to construct the machine.

3. SAME-SAME-CONSTRUCTIVE REDUCTION TO PRACTICE.

On the question of the sufficiency of a party's application to enable him to avail himself of his specification and drawings as constructive reduction to practice on the date of their filing, it is necessary to distinguish between those which are sufficient to show an intellectual conception of an improvement and those which are sufficient in a patent to enable others skilled in the art to build the machine without extraneous aid.

APPEAL from the Examiners-in-Chief.

LINOTYPE-MACHINE.

Application of Joseph C. Fowler filed October 1, 1893, No. 488,800. Application of Philip T. Dodge filed June 29, 1893, No. 479,153,

Mr. Jas. L. Norris and Mr. A. H. Norris for Fowler.

Mr. Robert F. Rogers for Dodge.

SEYMOUR, Commissioner:

This is an appeal taken by Dodge from the decision of the Examinersin-Chief awarding priority of invention to Fowler on the following issue: The combination, in an organized machine for producing type-bars from impressed lines of matrices, of a magazine having separate cells for circulating type-plates, a carrier or holder having a line-assembling channel or space, key mechanism for individually releasing the circulating type-plates from the magazine-cells, a carrier or holder for matrix material, means for causing the line of type-plates to indent the matrix material to form a line of matrices, casting mechanism for casting a type-bar from the said matrices, and mechanism in operative connection with the line-assembling channel or space for removing the type-plates therefrom and returning them to their proper cells in the magazine.

What confers novelty in this issue is the circulating system and securing the casting in the same machine. The means for effecting the circulation of the dies is the same as in the then-existing Mergenthaler machine. Dodge inserted indenting features in the Mergenthaler machine and a different mechanism from the Rogers machine and from the Lee and Le Brun machine. The Lee and Le Brun machine has everything in this issue except the circulating mechanism. The circulation of the matrices or dies effected by the circulating mechanism is necessary in a machine of this class to obtain the speed essential to commercial success.

It appears with sufficient certainty that Fowler showed "Exhibit 3" to Hine in the latter part of 1888 and explained to him the structure of his proposed machine and the connection in which the parts were to be used with such fullness as to convey an idea of the operative device of which the assembling-wheel illustrated in this exhibit forms a part. This "Exhibit 3," although it is a defective illustration, is sufficient, in connection with the oral testimony, to prove the conception of the entire machine.

Fowler was a comparatively poor man and was dependent upon others for the money necessary to carry forward inventions in this line involving the outlay of so much money, and therefore upon disclosing the invention to Hine he endeavored to get him sufficiently interested in the matter to furnish the capital necessary to perfect the invention. Hine refused to assist him with the indenting-machine, but agreed to assist him with the direct line-casting machine, and therefore Fowler proceeded to work on that line. Between the latter part of 1888 and December, 1892, he did nothing in the way of actually reducing his invention to practice; but in spite of Hine's discouragement he had not given up the idea, since he talked about the matter with others, experimented by indenting lead plates, and did not cease in his efforts to arouse Hine's interest in the invention. In the latter part of 1892 he tried to obtain Hine's consent to apply the indenting feature to a direct line-casting machine which he had just completed; but Hine refused to let this be done. Hine, under a contract with Fowler, furnished the money necessary in the construction of all machines built by Fowler at that time, and therefore his consent was necessary in order to apply the indenting feature.

In December, 1892, Fowler made the drawing "Exhibit 12" and showed it to Hine and gave him a full oral description of the invention and again tried to interest him in the matter, but again met with failure. He then, at Hine's request, proceeded to the completion of a folder for the American Printing Press Company, which was finished in July, 1893. During this time he talked about the invention with others, and in July, 1893, he again went to Hine and insisted that if Hine would not take up the matter he would seek elsewhere for aid. One of the main objections made by Hine to the indenting-machine was the cost of the type, and when in July, 1893, Fowler explained to him that they could be produced very cheaply he was favorably impressed, and on August 6, 1893, authorized Fowler to proceed to the construction of a machine embodying the invention. This Fowler immediately proceeded to do, working drawings being begun by Knaak and a fullsized working machine being begun this same month by Berger under Fowler's directions. This machine, which was made in substantial accordance with the specification and drawings of Fowler's application, was finished as early as November or December, 1893. It was not provided with a full set of type and was defective as to timing and as to

the strength of some of the parts, but was a practically operative device and actually produced indented bars, some of which are introduced in evidence. This machine was taken to pieces and another machine was built, using parts of the first one in construction. The second machine, which was completed by June, 1894, was built for the purpose of making it stronger in parts, more perfect in workmanship and finish, and somewhat larger than the first machine. This machine differs in several details from the first one, and from the disclosure in Fowler's application. Separate matrix-blanks were not used for each indentation, but two bars of lead were substituted, and a knife was provided for shaving off the indented part after the operation of casting, so that a smooth surface would be presented for another indentation. This difference is merely an improvement or step forward in the art and is no departure from the invention set forth in the issue. The lead plates could be removed after each indentation in this machine, and it is only for convenience that the knife is provided.

In conclusion, it is considered that Fowler had a competent conception of the thing to be accomplished and of the means for accomplishing it before the first of May, 1893, the date of conception proved by Dodge; that he had a competent conception of the means for carrying the matrix material, and that this means consisted of a drum provided with several matrix holding chambers in its periphery; that Fowler had before this determined to cast in the same machine with the indenting apparatus, and that his inactivities, at least between December, 1892, and the date of completion of his machine, under all the circumstances and considering the cost of the machine, are not fatal to his claim to priority.

On the question of the sufficiency of Dodge's application to enable him to avail himself of his specification and drawings as constructive reduction to practice on the date of their filing, it is necessary to distinguish between drawings and descriptions which are sufficient to show an intellectual conception of an improvement and those which are sufficient in a patent to enable others skilled in the art to build the machine without extraneous aid.

In the case of Plimpton v. Malcolmson, (L. R. 3 Ch. Div., 531,) Jessel, Master of the Rolls, held this language:

It is plain that the specification of a patent is not addressed to people who are ignorant of the subject-matter. If it is a mechanical invention you have first of all scientific mechanicians of the first class, eminent engineers; then you have scientific mechanicians of the second class, managers of great manufactories, great employers of labor, persons who have studied mechanics, and in this class I should

include foremen, being men of superior intelligence who, like their masters, would be capable of invention, and like the scientific engineers would be able to find out what was meant even from slight hints and still more imperfect descriptions, and would be able to supplement, so as to succeed even from a defective description, and even more than that, would be able to correct an erroneous description. That is what I would say of the first two classes, which I will call the "scientific" classes. The other class consists of the ordinary workman, using that amount of skill and intelligence which

is fairly to be expected from him—not a careless man, but a careful man, though not possessing that great scientific knowledge or power of invention which would enable him by himself, unaided, to supplement a defective description or correct an erroneous description. It will be a bad specification if the first two classes only understand it, and if the third class do not.

Upon the authority of this and other cases to the same effect it is thought that the specification and drawings in the application of Dodge, while showing to my entire satisfaction the adequate and fullest conception of the invention by Dodge himself, are yet insufficient to enable one skilled in the art, without other aids, to construct an operative line-casting machine of the indenting type called for by this issue.

Upon the whole case my conclusion is that Fowler is the first to conceive this improvement; that he proceeded with reasonable diligence to the construction of his machine and a test of it from August to December, 1893, and thereafter to the construction of a second machine not materially departing from the first; that he is the first inventor of the improvement set forth in the issue, and that the decision of the Examiners-in-Chief in awarding priority to him ought to be affirmed, and it is so ordered.

EX PARTE MUSGRAVE AND NYE.

Decided August 24, 1896.

78 O. G., 2046.

1. MUSGRAVE AND NYE-FUEL-NON-PATENTABILITY.

Application of N. W. Musgrave and H. P. Nye, for fuel and process of manufacture, examined and held not patentable in view of the prior art.

2. PROCESS-NON-PATENTable.

A process which employs low heat for a long time is not patentable over another which uses a high heat for a short time when the result-namely, the partial distillation of coal-is the same in both cases.

APPEAL from the Examiners-in-Chief.

FUEL AND PROCESS OF MANUFACture.

Application of Nathan W. Musgrave and Harold P. Nye filed May 11, 1895, No. 549,006.

Messrs. Briesen & Knauth for the applicants.

FISHER, Acting Commissioner:

This is an appeal from the decision of the Examiners-in-Chief affirming the rejection by the Primary Examiner of the following claims:

1. As a new article of manufacture, the herein-described smokeless fuel consisting of a bituminous fuel, the product of a partial distillation of bituminous coal at a low heat, devoid of smoke-producing constituents and retaining a large percentage of volatile combustible constituents.

2. The herein-described process of preparing a smokeless fuel which consists in subjecting bituminous coal to partial distillation at a low heat and maintaining the heat for a sufficient length of time to drive off only the lighter luminous and volatile hydrocarbons without removing the heat-yielding hydrocarbon constituents, substantially as described.

The references are Lynd, January 4, 1870, No. 98,606, and British patents No. 558 of 1856, Morgan, and No. 6,819 of 1892, Scott-Moncrieff. Applicants' process differs from the ordinary coking process in that a low heat is used; otherwise the processes are substantially identical. Applicants get a substance which may perhaps be described as partially-charred coal. The affidavits on file are to the effect that this substance has a higher heating power and is in every way valuable as a fuel.

The British patent to Morgan et al. describes a similar process as applied to anthracite coal. The British patent to Scott-Moncrieff, which is thought to be the closest reference, has the same object in view that applicants have. They claim, however, that the processes are essentially different. Scott-Moncrieff stops the distillation of bituminous coal before it is complete. Applicants claim that their process and product are both different from those of Scott-Moncrieff, because they use a low heat for a long time and Scott-Moncrieff uses a high heat for a short time.

It seems to me, however, that they are both substantially identical in that the coal is only partially distilled.

The decision of the Examiners in-Chief is affirmed.

BREUL v. SMITH.

Decided March 22, 1897.

79 O. G., 153.

1. PROCEDURE-REOPENING-DISSOLUTION.

The proper procedure in seeking to have an interference case, after decision by the Court of Appeals, reopened for consideration of a motion for dissolution is to file a motion before the Commissioner for reopening the case, in order to permit consideration by the Examiner of Interferences of a motion to transmit to the Primary Examiner the motion for dissolution.

2. PATENTABILITY OF ISSUES IN PRIORITY CASES-DECISION OF COMMISSIONER NOT FINAL.

The fact that the Court of Appeals of the District of Columbia has refused to consider questions of patentability of issues in priority cases does not establish the conclusion that the decision of the Commissioner upon questions of patentability in such cases is final and conclusive. Such questions should come before the court by regular course of appeal.

3. ERROR OF Procedure-PATENTABILITY OF ISSUE.

An error of procedure on the part of the Commissioner cannot be construed as amounting to a final adjudication of the question of patentability of an issue.