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case, that Drawbaugh and his assignees are not bound by the findings and judgment therein, would be to sacrifice substance to mere technicality, and do that at which reason and common sense would revolt. It is not necessary that a person should appear upon the record as a technical party to the proceedings in order to be bound by the judgment. (1 Greenleaf Evidence, secs. 522, 523, 535, 536; 4 G. & J., 407, 408.) If he is represented in the proceedings, or is a party in fact, though not of record, he will be bound. We are therefore decidedly of opinion that Drawbaugh, and those claiming under him, are bound by the findings and decree of the Supreme Court in the case of The Bell Telephone Company v. The People's Telephone Company, reported in C. D., 1888, 321; 43 O. G., 377; and 126 U. S., 1, on the present applications to the Patent Office.

The decision of the Examiner of Interferences is affirmed.

SMITH V. IRLAND.

Decided December 4, 1908.

137 O. G., 1709.

INTERFERENCE-APPEAL ON PRIORITY-MERITS OF JUDGMENT NOT CONTESTED. Where an appeal from a decision on priority does not question the propriety of such decision, but merely seeks a ruling on questions previously considered by the Commissioner on interlocutory appeals, relief will be refused.

APPEAL from Examiners-in-Chief.

PIPE-WRENCH.

Mr. D. P. Wolhaupter for Smith.

Mr. Albert W. Brown and Mr. James L. Norris for Irland.

MOORE, Commissioner:

This is an appeal by John A. Smith from a decision of the Examiners-in-Chief affirming the decision of the Examiner of Interferences awarding priority of invention to David H. Irland, deceased, Frances A. Irland, executrix.

The application of David H. Irland, deceased, was filed May 23, 1906, and that of John A. Smith February 7, 1906.

On behalf of Smith no testimony was taken except the deposition of the inventor himself, and this was not printed, as required by the rules. Irland being the senior party, the lower tribunals accordingly awarded priority of invention to him on the record.

This appeal, while taken from a judgment on the question of priority, does not appear to question the propriety of the decisions below on the record as now presented, but seeks a ruling upon questions raised before the Examiner of Interferences and on appeals to the Commissioner from his decisions rendered prior to the decision

on priority. These matters were given due consideration upon the appeals taken at that time, and they will not be again considered. The decision of the Examiners-in-Chief awarding priority of invention to the senior party, David H. Irland, (Frances A. Irland, executrix,) is afirmed.

WESTON V. BENECKE.

Decided June 15, 1908.

137 O. G., 1709.

1. INTERFERENCE-ORIGINALTY.

Evidence considered and Held sufficient to show that the junior party originated the invention in issue and disclosed the same to the senior party.

2. SAME-SAME-DOCTRINE OF CONCEALMENT INAPPLICABLE.

Where it is found that one of two interfering parties originated the invention in issue and disclosed the same to the other, the doctrine of forfeiture of the right to a patent by concealment does not apply.

APPEAL from Examiners-in-Chief.

ELECTRICAL RESISTANCE.

Mr. Charles J. Kintner and Mr. Marcellus Bailey for Weston. Messrs. Fischer & Sanders and Messrs. Bacon & Milans for Benecke.

BILLINGS, Assistant Commissioner:

This is an appeal by Benecke from the decision of the Examinersin-Chief affirming the decision of the Examiner of Interferences awarding priority of invention to Weston.

The issue is stated in ten counts, of which the following sufficiently illustrates the nature of the invention:

1. An electrical resistance device, consisting of two blocks of metal of high specific conductivity, and a conductor of high specific resistance and a short length connecting said blocks of metal, the free length of said conductor being such that the heat generated therein by the passage of a current therethrough, is conducted to and absorbed by said blocks of metal as rapidly as such heat is generated, whereby said conductor will not be overheated.

5. An electrical resistance device, consisting of two blocks of metal of high specific conductivity, and a conductor of high specific resistance and short length connecting said blocks of metal, the free length of said conductor being such that the heat generated therein by the passage of a current therethrough, is conducted to and absorbed by said blocks of metal as rapidly as generated, whereby said conductor will not be overheated, and means for connecting up said resistance device in an electric circuit.

Benecke, the senior party, is a patentee. The application of Weston was filed after the issuance of Benecke's patent for the evident

purpose of interference with the same. The burden is therefore upon Weston to prove priority of invention beyond a reasonable doubt. The invention in issue is admittedly an improvement upon a prior patent, No. 497,482, granted to Weston May 16, 1893, for improvements in shunts, and, as appears from the disclosure in Benecke's patent, the object of the present invention is to reduce the mechanical size of the shunt to a minimum and to provide a means for dissipating heat generated in the resistance-strip by conduction to large masses of material of high conductivity, to which the ends of the resistance material are secured.

It appears that in the device disclosed in the Weston patent the massive terminals were arranged about two inches apart, and the resistance comprised a plurality of strips of German silver connecting the terminals. As appears from the specification of the Weston patent, the resistance-strips are separated, so that the air may freely circulate around and between them and aid in the conduction of heat therefrom while the current is being passed through them. In the present invention the space separating the massive terminals is greatly reduced, the minimum limit stated in Benecke's patent being about two-tenths of an inch, and the heat developed in the resistance material is wholly dissipated by conduction through the massive terminals.

It appears from the testimony presented in behalf of Weston that in the latter part of the year 1893 a suit was brought by the Weston Electrical Instrument Company against the Empire Electrical Instrument Company and others involving the shunt covered by the Weston patent, No. 497,482, above referred to. In that suit the complainants contended that the construction of the patent involved a novel mode of operation, inasmuch as the heat was dissipated in the resistance-strips both by conduction to the massive terminals and by currents of air passing around and between said strips, while it was the contention of the defendants that a certain shunt, known as the "Franklin Institute" shunt, which comprised comparatively long resistance-strips attached to terminals which were immersed in oil, anticipated the terms of the patent. During the taking of testimony in that suit certain experts were called in behalf of the complainant. Of these Professor Anthony testified as to the differences between the Weston shunt and the Franklin Institute shunt, pointing out that as the Franklin Institute shunt had extremely long resistance-strips it would be impossible to effect the cooling by the conduction of heat through the terminals. On cross-examination Professor Anthony made certain calculations as to the length of conductors required to secure a certain stated drop in potential, which, in the opinion of Weston, was erroneous. His redirect examination was accordingly deferred until apparatus might be constructed to

confirm or disprove the statements of Professor Anthony. As appears from the testimony, four shunts were made at this time, one of which was destroyed in testing. The other three exhibits, marked, respectively, A, B, and C, are in evidence in the present interference. Of these exhibits, A was used in the suit above referred to, while B and C were not. The distance between the terminals or the effective length of the resistance-strip in Exhibit A is one inch, that between the terminals of B is three-tenths of an inch, and C two-tenths of an inch. The Weston application involved in this interference discloses the identical device referred to in this interference as Exhibit C. The distance between the massive terminals of the Weston Exhibit C corresponds identically with the distance between the terminals disclosed in Benecke's patent as the minimum length of the resistance material.

The testimony offered by Weston clearly establishes that at the time these shunts were constructed Benecke was in the employ of the Weston Electrical Instrument Company and assisted in the construction and testing of the Exhibits A, B, and C.

The Examiner of Interferences and the Examiners-in-Chief found that Weston's Exhibit C was constructed under the direction of Weston, that it embodied the invention in issue, and that having been disclosed to Benecke at the time it was constructed Benecke was not an original inventor.

It is contended in behalf of Benecke that these exhibits, which were made for the purpose of establishing certain facts in the Weston suit each embodied the invention disclosed in the Weston patent only and that they therefore include the cooling of the resistance-strips by aircurrents as well as by conduction through the massive terminals. It is also contended that the Benecke device is limited to cooling by conduction to the massive terminals only and that the issue of this interference must be so construed as to exclude Weston's Exhibit C. It is further pointed out that in Benecke's device the space between the terminals is filled with a fireproof insulating material, and there is no opportunity, therefore, for air-currents to reach the resistancestrip. It is to be observed that in Benecke's specification the insulating material is described to be used only for the purpose of keeping the resistance material from contact with the air to avoid oxidation thereof, and not for the special purpose of preventing cooling by air

currents.

Claims 5, 6, 7, and 8 of Benecke's patent are limited by the inclusion of this fireproof insulation as an element, but otherwise correspond identically in phraseology with claims 1, 2, 3, and 4. It is therefore obvious from Benecke's claims that it was his intention not only to cover the specific device which he disclosed, but also to include devices not provided with such insulation in which the resistance

strip was wholly cooled by conduction to the massive terminals, and therefore to cover such devices as Weston's Exhibit C.

In view of this fact it must be held that Weston was the first in possession of the invention in issue and that Benecke obtained knowledge thereof from him at the time Exhibit C was constructed.

It appears that after the construction of Exhibits B and C they were placed in the museum of the Weston Electrical Company, where they remained until the time testimony was taken in this interference, and it is contended in behalf of Benecke that Weston by concealing his invention has forfeited his right thereto, even if it be conceded that Exhibit C constitutes a successful embodiment of the invention. This contention is without force in view of the conclusion above reached that Benecke is not the original inventor of the subject-matter in issue.

For the reasons above stated the decision of the Examiners-in-Chief is affirmed.

TOWNSEND v. THULLEN And Thullen v. Young.

Decided November 25, 1908.

137 O. G., 1710.

INTERFERENCE-REDECLARATION-MOTION BY ASSIGNEE OF ONE OF THE ORIGINAL PARTIES-TRANSMISSION REFUSED.

The interference was originally declared between A. and B. and was afterward redeclared to include the application of C., the assignee of A. Held that a motion to dissolve brought by C. on the grounds that the issue is not patentable and that B. has no right to make the claims will not be transmitted since C. had an opportunity to bring such a motion as A.'s assignee. APPEAL ON MOTION.

RAILWAY SIGNALING SYSTEM.

Mr. George H. Benjamin and Mr. Eugene C. Brown for Townsend and Young.

Messrs. Bakewell, Byrnes & Parmelee for Thullen and Thullen.

BILLINGS, Assistant Commissioner:

This is an appeal by Young from the decision of the Examiner of Interferences refusing to transmit a motion to dissolve the aboveentitled interference.

The grounds of the motion are that certain of the counts are not patentable and that Thullen and Thullen have no right to make certain claims of the issue.

The record shows that Young was not originally a party to the interference, but that his application was added after the time within

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