way. We went ahead and prepared a drawing and made the estimate, and submitted the proposition to the National Electric Signaling Company about a week after Mr. Glaubitz first came there. The wooden tower was dropped, if I remember right, and all the subsequent talk was on a steel tower. On December 24th I believe we made a proposition on the steel poles that was accepted; that was the pole that substantially was built. It is to be noted that he makes no reference to the use of the tower as the antenna. In fact, he states (XQ. 44) that he did not remember Brown's attributing any electrical purpose to the tower. The Examiner of Interferences has cited the decision of the Court of Appeals of the District of Columbia in Gallagher v. Hastings (C. D., 1903, 531; 103 O. G., 1165; 21 App. D. C., 88) in support of his holding in favor of Brown, stating that all the reasons given by the court in that decision why a witness in the employ of one of the parties should be called by that party in corroboration of his testimony apply equally well to this case. It is to be noted, however, that in the case of Gallagher v. Hastings the failure of Gallagher to call the witness in question was only one of several circumstances which the Court stated tended singly to corroborate the story of Hastings in material particulars and conjointly to strengthen its credibility. In the present controversy the circumstances of the case do not tend to corroborate Brown's allegation that he suggested that the steel mast be used as the whole or a portion of the antenna. Fessenden was skilled in the art to which the invention belonged. Brown was a skilled inventor, and his company had a high reputation for the work which it did; but he admits that he had no special knowledge of wireless telegraphy or had made any special study thereof. As stated above, Gallagher's failure to call the witness in question was only one of several circumstances which the court held tended to corroborate the story of Hastings, and it, is not believed, therefore, that, under the decision cited, the failure of Fessenden to call Glaubitz is sufficient to justify an award of priority in favor of Brown merely because Glaubitz was employed by Fessenden. Nor can it be held that Fessenden's failure to call Glaubitz to deny Brown's allegation of disclosure to him brings the case within the doctrine laid down by the court in Winslow v. Austin, (C. D., 1899, 301; 86 O. G., 2171; 14 App. D. C., 137.) In that case the Court said: A party by his conduct in doing acts or in omitting to act when circumstances would seem to require action may often furnish evidence more convincing in leading to a conclusion than even the sworn testimony of the party, and that would seem to be the case here. The court, however, pointed out that in many particulars Austin's testimony was strongly corroborated, and it is not believed that the doctrine of that case can be applied to a case such as the present, where the circumstances do not corroborate the testimony of Brown as to the alleged disclosure. As stated above, Brown was not skilled in the art of wireless telegraphy. The feature of having the mast serve as the antenna belongs to this art and is not a mere mechanical feature. Brown admits that Glaubitz told him the tower must be insulated from the ground and the guys broken up into sections by insulation. Furthermore, as pointed out above, Fessenden denies Brown's testimony as to his objection to the pivoted feature and states why Glaubitz should have known that a large capacity was an advantageous and not a detrimental feature. Brown has established that he suggested that a steel mast be built instead of the tower shown in " Exhibit D;" but he has certainly failed to establish beyond a reasonable doubt that he suggested the use of this mast as the antenna, which is the essential features of the invention in issue. The decision of the Examiners-in-Chief is affirmed. TOWNSEND v. EHRET v. YOUNG v. STRUBLE. Decided November 25, 1908. 137 O. G., 1484. 1. INTERFERENCE-MOTION TO DISSOLVE-TRANSMISSION. A motion to dissolve an interference on the ground that one of the parties thereto had no right to make the claims of the issue in an earlier application of which the application in issue was stated in the declaration to be a division raises a question relating to the burden of proof and should not be transmitted. 2. SAME-REDECLARATION-MOTION TO DISSOLVE BY ORIGINAL PARTY. The redeclaration of an interference for the purpose of adding another party thereto does not give the right to one of the original parties to bring a motion to dissolve within thirty days after such redeclaration, raising questions which might have been raised in the interference as orginally declared. The time for bringing such motions expired at the end of the thirty-day period following the original declaration. 3. SAME-MOTION TO DISSOLVE-DELAY-EXCUSE INSUFFICIENT. The fact that the Primary Examiner discovers a reference and brings it forward of his own motion in a companion interference is no excuse for the delay of a party in bringing a motion to dissolve based on such reference where it does not appear that the same could not have been discovered in time had diligence been exercised. APPEAL ON MOTION. ALTERNATING-CURRENT BLOCK-SIGNAL SYSTEM. Mr. George H. Benjamin and Mr. Eugene C. Brown for Townsend and Young. Mr. Cornelius D. Ehret pro se. Mr. George E. Cruse for Struble. 69025-H. Doc. 1349, 60-2-18 BILLINGS, Assistant Commissioner: This is an appeal by Ehret from a decision of the Examiner of Interferences refusing to transmit a motion to dissolve. The interference as originally declared involved the applications of Townsend, Ehret, and Struble. It was subsequently redeclared to include the application of Young, Serial No. 343,353, which was stated to be a continuation of application Serial No. 154,275. After the approval of the preliminary statement of Young Ehret brought a motion to dissolve on the ground (1) that Young has no right to make the claims in his application Serial No. 343,353; (2) that Young has no right to make the claims in application Serial No. 154,275, and (3) that the claims are not patentable in view of certain references which were cited. The motion was transmitted as to the first ground and denied transmission as to the other two grounds. The refusal to transmit as to the second ground was based on the fact that the only question raised was one going to the question of shifting the burden of proof. This action was clearly right. Application Serial No. 154,775 is not involved in the interference. If it should be held that Young has no right to make the claims in application Serial No. 343,353, the question of his right to make them in application Serial No. 154,275 is a moot question so far as this interference is concerned. On the other hand, if it be held that he has a right to make the claims in the latter application the question of his right to make the claims in the earlier application is one which relates to the burden of proof and is to be decided by the Examiner of Interferences and forms no ground for dissolution of the interference. As to the third ground of the motion, the fact that Young's application had been added to the interference could in no way affect the patentability of the issue. The motion should therefore have been brought within thirty days from the approval of the original statements or a sufficient excuse given for the delay in bringing the same. In his motion Ehret stated that one of the references relied on was the United States patent to Roome, No. 483,621, discovered by the Primary Examiner and brought forward of his own motion in a companion interference involving Ehret, Townsend, and Young. This, however, is clearly insufficient to excuse the delay, as it is not made to appear that the reference could not have been discovered by a proper search in time to file the motion within thirty days from the time the statements were originally approved. It may be stated that this case affords no ground for a relaxation of the well-established practice that motions which are brought late will not be transmitted in the absence of a good and sufficient excuse for such delay, for it appears from the motion itself that the Exam iner is aware of the reference cited, and it is not to be presumed that he would allow the interference to continue if the issue thereof is clearly anticipated by such reference. The decision of the Examiner of Interferences is affirmed. TOWNSEND v. EHRET v. YOUNG v. STRUBLE. Decided November 25, 1908. 137 O. G., 1485. INTERFERENCE—) -MOTION FOR DISSOLUTION-PRIOR MOTION-RES ADJUDICATA. Where a motion to dissolve an interference is brought in the name of an assignee and such assignee afterward files an application for the invention and is included in the same interference, he is precluded from bringing a motion in his name to dissolve such interference which alleges either the same ground that was previously raised or any ground which might have been raised in the previous motion. APPEAL ON MOTION. ALTERNATING-CURRENT BLOCK-SIGNAL SYSTEM. Mr. George H. Benjamin and Mr. Eugene C. Brown for Townsend and Young. Mr. Cornelius D. Ehret pro se. Mr. George E. Cruse for Struble. BILLINGS, Assistant Commissioner: This is an appeal by Young from a decision of the Examiner of Interferences refusing to transmit a motion to dissolve the aboveentitled interference. The grounds of the motion are that the issue is not patentable and that Struble has no right to make the claims. The record shows that Young was not originally a party to the interference, but that his application was added after a motion for dissolution had been brought by Townsend on the ground that Struble had no right to make the claims and had been denied. The record also shows that Townsend's application is assigned to Young, the date of this assignment being prior to the original declaration of interference. The Examiner of Interferences refused to transmit the motion of Young as to both grounds thereof, his reason for such action being as follows: Townsend has already brought a motion for dissolution based upon Struble's right to make the claims. This motion was decided adversely to Townsend. At that time Young was Townsend's assignee and the real party in interest. Any argument that can be made under the present motion on Struble's right to make the claim could just as well have been made under the earlier motion as here. In regard to general patentability, Young, as Townsend's assignee, has already had a chance to urge the matter, but neglected to do so. Both grounds of the present motion were just as pertinent and available to Young in his former position as assignee as they are now. The facts are the same. It is believed that the presentation of such a motion at this time should only be allowed upon a showing why it could not have been brought earlier. To permit Young to enter this interference with a new application in his own name and now do what he has heretofore omitted to do, or reopen a matter which has already been decided adversely to him, is considered to be an unreasonable and technical application of the rule and not to be indulged in. It is to be noted that not only is Young the assignee of the Townsend application, but that the original motion to dissolve was brought in the name of Young as assignee of Townsend. It is true, as pointed out by counsel for Young, that interferences are between applications and not between applicants and that often interferences are declared between applications which are assigned to the same party. In several cases such interferences have been contested for the avowed purpose of obtaining the decision of the Patent Office or the Court of Appeals of the District of Columbia as to who was the prior inventor; but this is not such a case, and it is believed that it would be inequitable and an extremely technical application of the rules to allow a party who had had an opportunity as assignee of one of the interfering applications to bring a motion to dissolve the interference to later, after having entered the interference with an application in his own name, bring a motion to dissolve on grounds which could as well have been urged at the former time as now. The addition of Young's application to the interference in no way affected the question of the patentability of the claims or Struble's right to make them, and Young has given no reason whatever why the original motion was not based on the same grounds as the present one. This case is thought to fall within the ruling of the Court of Appeals of the District of Columbia in the case of Drawbaugh v. Seymour, Commissioner of Patents, (C. D., 1896, 527; 77 O. G., 313; 9 App. D. C., 219,) where it was contended that the Office had no authority to reject certain claims of Drawbaugh's application on the findings and authority of the Supreme Court of the United States in the case of The American Bell Telephone Company v. The People's Telephone Co., (C. D., 1888, 321; 43 O. G., 377; 126 U. S., 1,) for the reason that Drawbaugh was not a party to that proceeding. In that case the Court said: While Drawbaugh may not have been a technical party defendant to the case of the Bell Company against his assignees, he was a substantial party thereto. He was fully and completely represented by the corporation, his assignee, in which he was interested; and he was an active party in conducting the defense. He furnished the facts upon which the defense depended; and he was treated and referred to throughout as the substantial party concerned in maintaining The defense. To hold, after the proceedings and all that has occurred in that |