as one of the walls of his building, the first builder is entitled to
recover from the second builder compensation for the use of the wall.
Id.
PASSENGERS. See CARRIERS.
PATENTS. See INJUNCTION, 1; MANDAMUS, 1; PUBLIC LANDS, 1-3; TRADE-
MARKS, 22.
I. PATENTABILITY.
II. INTERFERENCE.
1. An invention of a method for so treating air by means of circulating it
through a fluid spray as to chill and reduce the humidity of the
air is anticipated by a patent for a similar invention, where the dif-
ference between the method of the patentee and that of the applicant
is entirely a question of the temperature of the spray relatively to
that of the air brought through it, although the patentee applies his
invention under conditions which normally require the heating of the
air and adding to its humidity. In re Braemer, 190.
2. There are no pleadings in an interference case, the preliminary state-
ments of the parties simply alleging the dates of conception and
reduction to practice. McKenzie v. Garrett, 6.
3. The Commissioner of Patents is entitled, in interference, to look to the
records of his own department and the reports and decisions of courts
in cases relating to actions therein without pleading. (Citing Re
Drawbaugh, 9 App. D. C. 219; Re Marconi, 38 App. D. C. 286.) Id.
4. The Commissioner of Patents is authorized to consider in interference
the question of res judicata though not raised by a motion to dis-
solve, when that question is shown by his own decisions and those
of this court, on appeal therefrom, and would not necessarily have
been presented by a motion to dissolve. Id.
5. The estoppel to litigate again a question adjudicated in a prior inter-
ference is not waived, by submitting evidence upon such question, in
a subsequent interference in which the Commissioner of Patents is
authorized to take into consideration the effect of former decisions
in his office. Id.
6. A decision awarding priority in interference is not res judicata in a
suit in equity by the losing party, instituted under sec. 4915, U. S.
Rev. Stat. Comp. Stat. 1913, § 9460, to compel the issue of the patent
refused in the Patent Office, but is final in a second interference
(citing Blackford v. Wilder, 28 App. D. C. 535; Horine v. Wende, 29
App. D. C. 415; Re Edison, 30 App. D. C. 321; United States ex rel.
Newcomb Motor Co. v. Moore, 30 App. D. C. 464; Carroll v. Hall-
wood, 31 App. D. C. 165; New Departure Mfg. Co. v. Robinson, 39
App. D. C. 504; Sutton v. Wentworth, 41 App. D. C. 582); and the
fact that it is not final in the former does not affect its finality in
the latter. Id.
7. Delay of eighteen months in filing his application, by the junior appli-
cant in interference, whose alleged conception, disclosure, and reduc-
tion to practice antedated those of the senior applicant, is satisfac-
torily explained by the fact that, when an officer of the company, of
which the former was an employee, apparently on its behalf, author-
ized the development of the invention, the junior applicant was given
to understand that he would be protected, since he was justified in
relying upon his employer to that extent. (Citing Shuman v. Beall,
27 App. D. C. 324.) Crabill v. Teeter, 10.
8. Priority will be awarded to the junior applicant in an interference, in
which the issue is the question of fact as to which party originated
the invention, where the senior applicant's case rests upon the stipu-
lated testimony of his father, who hastened with him to an attorney's
office to make application for patent the day following his son's al-
leged conception of the invention, and the testimony of one who,
within a month after the senior applicant's alleged discovery, severed
his connection with his employer to form, in conjunction with such
applicant and his father, a company for the manufacture and sale
of the articles in issue, in face of the fact that the employer of such
witness had already taken steps to manufacture some of the articles
in issue and place them upon the market, and where to hold that
the junior applicant did not originate the invention would be to en-
tirely ignore the testimony of his four unimpeached and reputable
witnesses. Id.
9. The question of operativeness must be regarded as settled, upon an ap-
peal from a decision of the Commissioner of Patents in interference,
where there was no motion to dissolve on the ground of inoperative-
ness, and each tribunal of the Patent Office to which it was presented
as an incidental question has decided in favor of the junior party.
(Citing Duryea v. Rice, 28 App. D. C. 423.) Cheatham v. Collins,
10. A test is sufficient to establish reduction to practice in interference,
where the device tested reasonably meets the requirements of the
specifications, and the test demonstrates the efficiency and utility of
the invention, though there are some minor mechanical defects after-
wards cured by changes such as any skilled mechanic would make.
(Citing Burson v. Vozel, 29 App. D. C. 388; Pool v. Dunn, 34 App.
D. C. 132.) Id.
11. Decisions of the Patent Office tribunals in interference, as to time of
conception and diligence in reduction to practice, made after careful
and fair review of the evidence, will not be disturbed by this court,
on appeal, where it finds no error. Id.
12. The junior applicant in interference is entitled to an award of origi-
nality as against a senior applicant who, although claiming to have
described the invention to, and employed, the former to make the
drawings, had, before filing his application, witnessed the junior
applicant's caveat, and entered into a contract with him, reciting
that the article in issue was invented by the junior applicant, and
providing for the assignment by the latter to him of a half interest
in all letters patent issued to the latter for such article. Blaw v.
Whitall, 20.
13. An employee who testifies, in an interference, for his employer, the
senior applicant, is not, as against the junior applicant, estopped
from claiming the invention upon becoming a party to the inter-
ference by filing an application himself after the employer's defeat
became possible, where he was bound to assign his own invention
to the employer, and believed that the latter's conception antedated
his own. (Distinguishing Lloyd v. Antisdel, 17 App. D. C. 490.) Id.
14. The prejudicial effect of witnessing the caveat of an adversary in an
interference involving a form or centering device for concrete tubes
and aqueducts is not avoided by the failure of the caveat to dis-
close the whole issue, where the part omitted is well known to both
parties at the time, and understood to be part of the construction,
and is public property, and the witness knows that the caveat con-
tains substantially all the design work which the parties had pre-
sented to a contractor engaged in constructing an aqueduct. Id.
15. Permission to a party in interference to amend his preliminary state-
ment rests in the discretion of the Commissioner of Patents. Id.
16. The refusal of permission to a party in interference to amend his pre-
liminary statement with respect to the date of disclosure, held no
abuse of the discretion of the Commissioner of Patents. Id.
17. The Commissioner of Patents properly refuses to entertain, in an in-
terference involving three parties, a waiver by the junior applicant
of the limitation put upon the senior applicant by his preliminary
statement, as to his date of disclosure, although the Examiner of
Interferences and the Examiners in Chief have found in favor of
both the senior and junior applicants as against the intermediate
applicant, since the latter is still a party and is also affected by
the waiver.
18. Where the evidence in an interference proceeding involving an invention
for decorating or "stroking" candies showed that the junior party,
who filed two months after the senior party's filing date, had manu-
factured and sold a machine three months before the senior party's
date of conception, and there was evidence on behalf of the junior
party that such machine contained every element of the issue, and
was in existence and accessible to the senior party, thus making it
possible for the senior party to disprove his adversary's evidence if
he could have done so; and it further appeared that the junior party,
after the sale of this machine, manufactured and sold other and
similar machines embodying the invention,-it was held that the
junior party was entitled to the award of priority. (Citing Schneider
v. Driggs, 36 App. D. C. 116.) Smith v. Kihlgren, 193.
19. It is within the jurisdiction of the Commissioner of Patents to order
the dissolution of an interference and the rejection of the claims of
one of the parties, if convinced that the issues are barred by public
use, and therefore not patentable. U. S. ex rel. Dwiggins v. Ewing,
20. The dissolution of an interference on the ground that one of the parties
had failed to overcome the references to a prior patent is not res
judicata of the question of priority involved in a subsequent inter-
ference between the same parties, declared after such party had
amended his claims. (Citing Gold v. Gold, 34 App. D. C. 229, and
Moore v. United States, 40 App. D. C. 201.) Rotter v. Hodgkinson,
21. Where in an interference there is no ambiguity in the claims, and they
are capable of a broad construction, the court will not read into them
a limitation not expressed therein. If one of the parties desires to
limit their construction, he should have done so in making his ap-
plication for a patent. (Following Geltz v. Crozier, 32 App. D. C.
324; Engel v. Sinclair, 34 App. D. C. 212; Western Electric Co. v.
Martin, 39 App. D. C. 147; and Leonard v. Horton, 40 App. D. C.
22.) Id.
22. In an interference proceeding, where the rights of one of the parties to
make the claims depends upon the words of the issue, "a governor
controlling both valves," and it appeared that while the governor of
his device possibly did not directly control both of its valves, it did
control one directly and the other indirectly, and that there was no
prior art requiring a limitation to be put upon the word "control-
ling," thus requiring the broadest construction to be put upon it,
it was held that he had the right to make the claims, and was en-
titled to an award of priority. Id.
23. In an interference proceeding involving an improvement in rotary print-
ing presses, where the question was as to the right of one of the
parties to make claims corresponding to the counts of the issue,
which called for a plurality of sets of cylinders in adjacent sets,
arranged end to end, and for a series of coacting plate and impression
cylinders similarly arranged, it was held that he had no such right,
as these requirements could not be found in his machine, while they
were present in the machine of his rival, and also that results which
could be obtained by the latter's machine concededly could not be
accomplished by his. Bechman v. Scott, 324.
24. Permission to an applicant to amend by presenting new and broader
claims is properly refused by the Patent Office, when the amend-
ment is sought to be made after the dissolution of an interference
between his and another application. Amendments must be made
during the time fixed by rule 109 of the Patent Office, or when a
motion for dissolution is made,-not later than that time. In re
Capen, 342.
25. Where in an interference proceeding the junior party relied upon a
former application as showing constructive reduction to practice, it
was held that the drawings attached to that application did not
clearly disclose the invention as claimed, and that his conduct after
the filing of his earlier application, in negotiating the purchase of
the invention of a third party, and assisting him in an interference
which had been declared between the latter and the senior party,
indicated that the junior party knew his earlier application did not
disclose the issue. Toledo Scale Co. v. Dunn, 377.
26. Where one of the parties to an interference was the first to conceive,
but the last to reduce to practice, he is not entitled to an award of
priority, unless he shows that he was diligent at the time the other
party entered the field. Id.
27. In an interference proceeding involving the invention of a carbureter
having means for locking manually operated devices with an auxil-
iary air inlet valve, it was held that the construction of one of the
parties claimed to be a reduction to practice did not read on the
issue because it had no separate means for locking the valve when
closed, while the evidence showed that the other party successfully
reduced to practice prior to his rival's conception and actual reduc-
tion to practice. Goldberg v. Dayton, 382.
28. In an interference involving an improvement in automobile tire cas-
ings, in which one of the applicants relied upon an earlier applica-
tion filed prior to the issuance of a patent to his rival, as divisional
of his later application, it was held that one of the claims of the
earlier application constituted the broad claim of the invention of
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