closure made to Collins, according to his testimony, and as this is but a part of the combination of the issue, it seems too clear for argument that it cannot be regarded as a sufficient disclosure of the entire combination. The sufficiency of this disclosure is urged on the ground that the part of the combination actually disclosed was the only novel element and that the remaining parts of the combination were well-known devices operating on well-known principles. It may be true that the elements disclosed were the only novel elements and that Collins knew the result which Kinsman desired to accomplish, but there is nothing to prove that either Kinsman or Collins knew what old elements should be combined, or how they should be combined, with these novel elements to accomplish such result. A. M. Kinsman testifies that his brother disclosed to him in 1886 or 1887 an invention for automatically stopping electrically-operated trains, but he is unable to recall any details except that he was shown a sketch of a trolley wire and wheel having wires coming down on both sides or on one side of the car. For the reasons above stated in discussing the testimony of Collins this testimony is clearly insufficient to prove a disclosure by Kinsman of the specific combination of the issue. It is clear that Kinsman's record fails to prove a conception of the invention prior to Strohm's filing date. But even if the testimony be regarded as sufficient for this purpose, Kinsman would still not be entitled to prevail, since he has utterly failed to show diligence thereafter in the filing of his application.

We are constrained to adopt the view of each of the three tribunals of the Patent Office, that Kinsman's testimony falls short of proving a conception of the invention prior to Strohm's filing date. Moreover, as stated by each of the three tribunals, the testimony fails to show diligence on the part of Kinsman at or about the time Strohm entered the field. This would defeat him even though it should be held that he was the first to conceive and reduce to practice.

The contention is made on behalf of Kinsman that the Commissioner erred in not striking Strohm's application from the files. It appears that during its pendency in the Office the application became abandoned by failure to prosecute, and that upon proper showing it was subsequently reinstated by the Commissioner. Kinsman based his motion to strike Strohm's application from the files on the ground that its reinstatement was obtained through fraud. The testimony bearing on this question was carefully considered by the Commissioner and held not to sustain Kinsman's contention. We are satisfied that there has been no abuse of power on the part of the Commissioner in respect to this motion, and, therefore, decline to interfere with the exercise of his discretion. (In re Atkins & Co., 29 App. D. C., 385; Richards v. Meissner, C. D., 1905, 595; 114 O. G., 1831; 24 App. D. C., 309; American Stove Co. v. Detroit Stove Works et al., ante, 407; 134 O. G., 2245.)

The decision of the Commissioner awarding priority of invention to Strohm is affirmed. The clerk of the court will certify this opinion and the proceedings in this court to the Commissioner of Patents, in accordance with law.

[Court of Appeals of the District of Columbia.]

MCKILLOP v. FETZER.

Decided June 9, 1908.

136 O. G., 1770; 31 App. D. C., 586.

INTERFERENCE-ORIGINALITY-DELAY IN FILING APPLICATION.

Where the question is one of originality and the relation of employer and employee exists between the parties, the fact that the junior party, who was the employee, did not file his application till nearly a year after he knew of the issuance of the senior party's patent and has given no excuse for such delay justifies resolving any doubt as to who was the originator of the invention against him.

Mr. C. F. Burton for the appellant.

Mr. L. S. Bacon and Mr. J. H. Milans for the appellee.

ROBB, J.:

This is an interference proceeding and involves an alleged improvement for grain-drills. The issue is stated in fifteen counts, but we think the following amply sufficient for the purposes of this opinion:

1. A foot for hopper ends formed of sheet metal struck up to provide oppositelydisposed overlying flanges, and a reinforced-filling intermediate said flanges.

3. A hopper of the character described formed partially of wood and partially of sheet metal, the sheet-metal part having struck-up portions forming receiving portions for securing and bracing the wooden parts in place.

8. A single-piece sheet-metal hopper end having an integral struck-up perforated ear flanged exteriorly.

13. A single-piece sheet-metal hopper end having integral struck-up side and top flanges, and a struck-up exteriorly-flanged perforated ear intermediate said top and one of the side flanges, the flange of said ear merging into said top and side flanges.

Fetzer, the senior party, filed an application October 22, 1904, which ripened into a patent on January 31, 1905. McKillop, the Junior party, filed his application April 30, 1906, which was a year and three months after the issuance of a patent to Fetzer, and about eleven months after actual knowledge of such issuance.

Prior to and during the year 1904 Fetzer was secretary and gencral manager of the McSherry Mfg. Co., manufacturers of agricultural machinery including grain-drills. These drills as then manufactured contained cast-iron ends which had given the company some trouble in shipment owing to their liability to breakage. Fetzer and the company's draftsman, one Moehring, saw a pressed-steel hopper in Kansas City in 1901, at which time Fetzer suggested the idea of manufacturing the ends of their grain-drills of pressed steel. Early in 1904 McKillop, who was prominently connected with the Comstock Sash Lock & Novelty Co., manufacturers of pressed-steel

articles, wrote the McSherry Mfg. Co. soliciting orders. This resulted in April, of the same year, in a visit by McKillop to the office of the McSherry Mfg. Co., where he had an interview with Fetzer who represented his company. It is clearly established that Fetzer then suggested to McKillop the idea of manufacturing drill ends out of pressed steel and that McKillop pronounced the idea feasible. The testimony as to just what was said during the interview is neither clear nor convincing. Certain it is, however, that McKillop was shown a cast-iron drill and requested to get out a duplicate sample in pressed steel. It is also certain that as the result of this interview such a sample was made and late in July shipped to Fetzer's company. The first sample was not satisfactory in detail and several others followed before perfection was attained. In the meantime McKillop again visited Fetzer, and the subject was again under discussion. The testimony, however, as to what was said at the second interview is as indefinite as the testimony concerning the first interview. The correspondence between Fetzer and McKillop during this period has been introduced, but it throws little light on the subject other than to establish Fetzer's evident desire to hasten the construction and perfection of the drill-end sample and certain other parts which McKillop was to make in pressed steel.

It is contended on the part of Fetzer that he imparted to McKillop not only the broad idea embraced in the invention but suggested to him the various modifications and changes incident to the change in material.

McKillop, on the other hand, contends that Fetzer did nothing more than furnish him a sample of the old construction and request him to duplicate it in pressed steel, and that the modifications and changes which were made and which really constitute the patentable features of the issue were the product of his own mind.

It will thus be seen that the question presented is one of originality rather than of priority of invention. Each of the three tribunals of the Patent Office has ruled that Fetzer was the originator of the invention, and while the question is not free from doubt we are inclined to concur. We are impelled to this conclusion because of the relation of the parties, which imposes a heavy burden upon McKillop; because of McKillop's long delay in filing his application after he had actual knowledge of the issuance of Fetzer's patent; and because Fetzer possessed expert knowledge of grain-drills and was in a position to know what changes would be necessary. The decision in Kreag v. Geen (C. D., 1907, 502; 127 O. G., 1581; 28 App. D. C., 437) is apposite here. In that case the court, by Mr. Chief Justice Shepard, said:

The relation of employer and employee once established, the law is well settled that when one conceives the principle or plan of an invention, and employs

another to perfect the details and realize his conception, though the latter may make valuable improvements therein, such improved result belongs to the employer. * * As before declared, it is not our province, under the limitation of the jurisdiction conferred upon us in such cases as this, to say that the improvement was the result of mere mechanical skill rather than of invention.

In the present case the relation of employer and employee is established. McKillop has failed to explain his long delay in asserting his claims, and has likewise failed to overcome the burden that was upon him.

The decision of the Commissioner is affirmed. The clerk of the court will certify this opinion and the proceedings in this court to the Commissioner of Patents, in accordance with law.

[Court of Appeals of the District of Columbia.]

IN RE WHITE.

Decided June 9, 1908.

136 O. G., 1771; 31 App. D. C., 607.

1. PATENTABILITY-PROCESS.

A claim for a process of forming metal rings which differs from the references merely by the statement that a bead is formed centrally of the blank Held unpatentable.

2. SAME-SAME-FUNCTION OF MACHINE.

A claim for a process Held unpatentable when it does not appear that said process can be carried out by any other means than that invented for such purpose by appellant and for which he has obtained a patent.

Mr. L. P. Whitaker for the appellant.

Mr. F. A. Tennant for the Commissioner of Patents.

SHEPARD, C. J.:

This is an appeal from the decision of the Commissioner of Patents refusing claims 4 and 5 of an application for a patent for a process of making metal rings for pipe-couplings.

The application contained five claims as follows:

1. The herein-described process of forming metal rings provided with flared ends and an internal bead, which consists in forming a skelp having a central longitudinal bead on one face, and lateral edges inclined toward the beaded face, severing said skelp and forming a blank therefrom having its ends parallel and inclined to the faces thereof, bending the blank into circular form with the bead on the inner side and welding the ends together, flaring the ends of the ring so formed and bringing its inclined edges perpendicular to the axis

of the ring and expanding the portions of the ring between said flared portions to bring it to a true circle of required diameter.

2. The herein-described process of forming metal rings having an internal bead, and flared ends, which consists in forming a blank consisting of a flat plate of a width substantially equal to the length of the desired ring, and a length greater than the periphery thereof, said plate being provided with a longitudinal bead on one face, and having its edges inclined toward its beaded face, forming the blank into a ring with the bead inside and welding the ends together and then flaring the ends of the ring outwardly, and bringing said inclined edges perpendicular to the axis of the ring.

3. The herein-described process of forming metal middle rings for pipecouplings which consists in bending a plate or blank having its edges inclined toward one of its faces, into ring form, welding the ends of the blank together and then bending marginal portions at each end of the ring outwardly to bring the inclined faces thereof perpendicular to the axis of the ring, substantially as described.

4. The herein-described process of forming metal middle rings for pipe-couplings provided with an internally-projecting stop, and having a packing-recess at each end, which consists in forming a blank consisting of a flat plate having a longitudinal bead located centrally on one side of the same, bending said blank into the form of a ring, with the bead on the inside, welding the ends of the blank together, and then bending the marginal portions of the ring at each end thereof bodily outwardly to form the packing-recesses, substantially as described.

5. The herein-described process of forming metal middle rings for pipe-couplings, which consists in bending a plate or blank into ring form, welding the ends together and then bending marginal portions only of the ring at each end thereof bodily outwardly out of line with the central portions of the ring between said marginal portions, substantially as described.

The Examiner rejects claims 1, 2, 4, and 5, and allowed claim 3. His allowance of claim 3 was on the ground that it included the beveling of the edges in the flat blank in order to bring the said edges in a plane perpendicular to the axis of the ring after the flaring operation. On appeal to the Examiners-in-Chief they affirmed the rejection of the remaining claims. The Commissioner, on appeal, reversed this decision as to claims 1 and 2, and affirmed the rejection of claims 4 and 5. He said that:

Claim 3 having been allowed because it includes the limitation that the beveled edges of the flat blank are inclined toward one of its faces, it is not believed that claims 1 and 2, which include this limitation and also the limitation of forming a blank with a bead thereon, that is, claims which state the process by which the exact article shown is made, should be rejected.

The appealed claims 4 and 5 were rejected on Hambay's patent April 19, 1887, and Boyd's of August 12, 1902.

The invention consists in an improved method or process of manufacturing the middle ring of a pipe-coupling similar to the middle ring shown in a prior patent to S. R. Dresser, dated July 2, 1889. This middle ring or sleeve is slipped over the meeting ends of plain