ty being the transmission of pictures by wire and radio. He is one of eighteen examiners in the electrical art. Dr. Momber is an examiner of gas and steam engines, which are not separated there as in this Office.

On leaving Washington the visitors were to separate and each proceed to sections of the country where his field of invention is best illustrated in industrial plants. G. P. T.

COMMERCIAL ACTIVITIES AS EXCUSING DELAY IN REDUCTION TO PRACTICE

By EMERSON STRINGHAM

An inventor may reduce an invention to practice either by filing an allowable application disclosing the invention, or by an actual demonstration of the workableness of the invention. Such workableness may be demonstrated for extremely simple inventions by the simple embodiment of the invention, even without any tests. Most inventions, however, are not regarded as actually reduced to practice until successfully tested. The filing of an application is treated as a constructive reduction to practice, and the expression "reduction to practice" and like expressions as hereinafter used mean constructive and/or actual reduction to practice.

Under the law of the United States the inventor who first reduces to practice is usually deemed the "first" inventor, but an independent inventor who was prior to conceive the inventive idea of means, will be deemed the "first" inventor, if he shows that he was diligently proceeding toward a reduction to practice at the time when the adversary entered the field, and up to the time of completion of his own reduction to practice.

The word "diligence" as here used is derived from an act of 1836, now R. S. sec. 4920. Christie v. Seybold, 55 Fed. 69 (6th circ.); 64 O. G. 1650; 1893 C. D. 515. In deciding whether a party has been diligent consideration is given to any of his activities during the period in ques

tion. Such activities include both those that contribute to the reduction to practice and those which do not so contribute. The former may be thought of as affecting the question of whether there was delay, the latter may be thought of as affecting the question of whether or not the delay, if any, is excusable. Such a classification, however, like any other classification, is central rather than peripheral. Otherwise expressed, the classification does not represent definitely prescribed areas, but central points around which the facts may be grouped, some facts falling into either or both groups. All activities may be considered, the problem being whether a reasonable ratio of the totality of activities was directed to effecting a reduction to practice.

Efforts toward commercial development of an invention, such as the flotation of an organization to exploit it, are frequently urged in connection with the issue of diligence. This form of activity will not in itself constitute diligence Peterson v. Thomas,-App. D. C.-; 10 F (2d) 908; 347 O. G. 4; 1926 C. D.—. Thus, in Seeberger v. Dodge, 24 App. D. C. 476; 1905 C. D. 603; 114 O. G. 2382, the court said, C. D. p. 609:

One having the first complete conception of an invention cannot hold the field against all comers by diligent efforts merely to organize and procure sufficient capital to engage in the manufacture of his device or mechanism for commercial purposes.

This case just cited was followed by Laas v. Scott. 26 App. D. C. 354; 122 O. G. 352; 1906 C. D. 621, and to the same effect is Twentieth Century Machinery Co. v. Loew, 243 Fed. 373 (6th circ.: 1917). On the other hand, the tendency of the decisions is to give some credit for commercial efforts. In Sargent v. Vetter, 48 App. D. C. 582; 262 O. G. 646; 1919 C. D. 204, priority was awarded to Vetter, reversing the commissioner; Vetter's efforts were directed to commercial development, and he failed, during seven months duty of diligence, to make a reduction to practice, although such a reduction would have

cost but a few dollars. Likewise in Wayne v. Tew, 53 App. D. C. 336; 290 Fed. 311; 313 O. G. 235; 1923 C. D. 247, the effort of Wayne to obtain financial assistance seems to have been directed principally to commercial exploitation; he filed an application on a different invention because he thought that it would be more likely to yield financial returns, but the consequent delay in filing an application on the invention in issue was excused.

Under these authorities it would seem that efforts toward commercial development may now be regarded as of some relevancy on the direct issue of diligence, but whether grouped here or with excuses for delay is probably a matter of no vital consequence, because they must be considered one way or the other. An inventor could not properly be excused for indefinite delay upon this basis, but his commercial activities are always relevant on the issue of diligence.

PATENTABILITY OF GAMBLING MACHINES
T. E. BEALL,

Assistant Examiner Div. 13.

In considering certain inventions the question comes to mind as to whether the devices are gambling machines and if so are they lawful under the patent law? Thus two questions arise, first whether the patent laws warrant the issue of a patent on a gambling machine and secondly what machines are gambling machines.

The first question has to be decided of course by consulting the patent laws and the decisions thereunder. Turning to Sec. 4886 of the Revised Statutes one finds that there are certain prerequisites of a patent one of which is utility of use. An invention then has to possess utility before it can become patented. Is, however, the possession of utility sufficient? Attention in this respect is called to Brewer vs. Lichtenstein et al., 278 Fed. 512, Fuller vs. Berger, 120 Fed. 274, and National Automatic

Device Co. vs. Lloyd et al., 40 Fed. 89. The above cited decisions hold that a machine which has no use except as a gambling machine is not a useful device in the meaning of the patent law, as its use is only pernicious and hurtful and designed to produce a bad result and therefore possesses no lawful utility.

The court in the National Automatic Device Co. Case held that the only use to which the invention described in letters patent 410981, for a "Toy Automatic RaceCourse" has been put, being for a gambling purpose, it is not a useful invention within the meaning of the patent law of the U. S. The device covered by the patent is a shaft projecting upwardly from the center of the base of a circular shell or case from fifteen to eighteen inches in diameter, to which shaft a clock work mechanism is so geared that it can be made to revolve rapidly by releasing the escapement of the clock work. On the shaft are mounted two or more radial arms to the ends of which are attached small toy figures of horses. These radial arms are attached to the shaft by separating collars so loose that they turn easily on the shaft. The clockwork escapement is released by dropping a nickel coin through a slot in the machine whereupon the shaft commences to revolve rapidly carrying the arms with it, but, after a certain number of revolutions the force of the clockwork is cut off and the radial arms continue to revolve due to their momentum until such arms finally stop from friction and resistance of the air. These devices were placed in saloons, bar-rooms and other drinking places where the frequenters of such places made wagers as to which of the toy horses would stop first. The court cited Bedford vs. Hunt, 1 Mason 302, which held that by useful invention, in the statute, is meant such a one as may be applied to some beneficial use in society in contradistinction to an invention which is injurious to the morals, the health or the good order of society; and that the invention shall be capable of use and that the use is such as sound morals and policy do not discountenance or prohibit. The court held, that

although it was argued that the device might be used as a toy, that the only use to which the invention has been put being for a gambling purpose it must be held that it is not a useful device within the meaning of the patent law.

The court in Brewer vs. Lichtenstein et al. held the Brewer patent 780086 for a vending device or punch board intended for use in a lottery device should be void for want of lawful utility and also for lack of invention in view of the prior art. The specification stated the object and form of the device as follows: "The object for which the device is principally designed is to promote the introduction and sale of merchandise by a novel mode and instrumentality. The preferred embodiment consists of a series of pockets or holders for written or printed order slips, which latter are confined within the respective pockets of the receptacle by a frangible device which serves to entirely conceal the order itself, in association with an ejecting device by which the orders one at a time may be dislodged from the receptacle. A customer will pay a certain sum, say five cents, for the privilege of ejecting an order from the device, which erder will call for, at least, a quantity of the goods advertised for the retail sale value of the price paid for the privilege, and in some instances for a premium or gift. The court held that the utility of the limitation of the covering element to a concealing means was to enable the gambling instinct of purchasers to be appealed to in promoting the sale of merchandise. The appellant admitted a punch board wherein each pocket was labeled with the order inside and stated in argument that this might be used for counting the number of sales by computing the vacant holes. The court said, however, as an accounting system, the suppositious punch board might be as useful as making chalk marks on the wall.

The decisions also hold that an invention is useful within the meaning of the patent law (Fuller vs. Berger) if it is used or designed or adapted to be used to accomplish a good result though in fact it is often used or is as