2. The combination with a valve-seat provided with ports, of a rectangular valve member adapted to control said ports, guides for compelling said valve member to move in a right line, a valve-stem provided with a pin disposed eccentrically to the axis of said stem, a rectangular block provided with an aperture adapted to receive said pin, said valve member being provided with guides disposed at right angles with respect to the guides on the valve-seat, said guides being adapted to restrain the movement of said block to a right line. The senior party, Harmer, has a patent, No. 844,307, issued February 12, 1907, on an application filed December 17, 1906. Ohlsen's application was filed April 11, 1907. Only the party Ohlsen took testimony. The invention in controversy is a controlling-valve for an air-brake system and embodies certain improvements on the Cheshire valve of Patent No. 762,025, issued June 7, 1904. The Examiner of Interferences awarded priority of invention in favor of Harmer on the ground that Ohlsen had failed to discharge the burden of proof placed upon him by reason of the fact that Harmer has a patent granted before Ohlsen filed his application. The Examiners-in-Chief reversed the decision of the Examiner of Interferences and awarded priority in favor of Ohlsen on the ground that he first had knowledge of the main plan of the invention and suggested the main improvements in the Cheshire valve to Harmer. Concerning the following state of facts there appears to be no dispute. In the year 1904 and for some time thereafter both Ohlsen and Harmer were employees of the National Electric Company and its successor, the National Brake & Electric Company, the assignee of the Ohlsen application. At that time this company was manufacturing the Cheshire valve, and Ohlsen, who was an expert in this line, constructed a model of a valve in which he endeavored to remedy certain defects that he had detected in the Cheshire construction. After completing the model he showed it to Harmer and sought to secure his services in promoting the invention. Harmer was impressed with the advantages of the valve, and a partnership arrangement was entered into by which Harmer was to pay part of the expense of making a commercial valve and was to endeavor to secure its adoption by some manufacturing concern. Drawings and patterns, were made of the Ohlsen valve and an order given to one Braun for the construction of two valves. During the process of their manufacture it was decided to substitute a cross-head for the pin-and-slot connection of the Ohlsen model for actuating the sliding valve. One of the two valves which had been ordered was accordingly constructed with a cross-head, while the other valve embodied the pin-and-slot connection. The officers of the National Electric Company decided that this valve was an improvement upon the Cheshire valve and adopted it as their commercial valve. They took an assignment from Harmer and Ohlsen, whom they understood to be joint inventors, paying each the sum of ninety-five dollars. An for the purpose of developing imperfections in the machine, and that many minor changes were made whereby the percentage of waste was reduced. Under these circumstances the fact that incidentally cigars were produced, some of which were sold at a reduced price to the workmen and others were sufficiently perfect to be placed upon the market, does not change the character of the use from an experimental to a public one. The sixth contention of appellant, relating to priority of invention of the structure of counts 1, 2, and 3, has already been considered and found unwarranted. The decision of the Examiners-in-Chief is affirmed. OHLSEN v. HARMER. Decided July 13, 1909. 148 O. G., 1085. 1. INTERFERENCE-ORIGINALITY-FIDUCIARY RELATION BETWEEN PARTIES. When O. was admittedly the inventor of all the features of the invention save one and H. obtained his knowledge of these features from O. and the testimony was not clear as to whether the other feature was an improvement suggested by H. or by a third party, Held that O. was entitled to an award of priority in either event, inasmuch as a partnership relation was shown to exist between O. and H. at the time the invention in issue was made. 2. SAME-SAME-CIRCUMSTANCES AND CONDUCT. In cases where the question is on the originality rather than priority of invention the surrounding circumstances and conduct of the parties are entitled to great weight. APPEAL from Examiners-in-Chief. VALVE. Mr. Charles A. Brown for Ohlsen. BILLINGS, First Assistant Commissioner: This is an appeal by Harmer from the decision of the Examinersin-Chief reversing the decision of the Examiner of Interferences and awarding priority of adoption in favor of Ohlsen. The issue consists of the two following counts: 1. The combination with a valve-seat provided with ports, of a valve member resting against said seat, said seat being provided with guides to restrain the movement of said valve member, said valve member being provided with guides disposed at an angle with respect to the guides upon said valve-seat, a stem provided with a pin eccentric to the axis thereof, a block adapted to move between the guides on said valve member, said block being provided with an aperture adapted to receive said pin. 2. The combination with a valve-seat provided with ports, of a rectangular valve member adapted to control said ports, guides for compelling said valve member to move in a right line, a valve-stem provided with a pin disposed eccentrically to the axis of said stem, a rectangular block provided with an aperture adapted to receive said pin, said valve member being provided with guides disposed at right angles with respect to the guides on the valve-seat, said guides being adapted to restrain the movement of said block to a right line. The senior party, Harmer, has a patent, No. 844,307, issued February 12, 1907, on an application filed December 17, 1906. Ohlsen's application was filed April 11, 1907. Only the party Ohlsen took testimony. The invention in controversy is a controlling-valve for an air-brake system and embodies certain improvements on the Cheshire valve of Patent No. 762,025, issued June 7, 1904. The Examiner of Interferences awarded priority of invention in favor of Harmer on the ground that Ohlsen had failed to discharge the burden of proof placed upon him by reason of the fact that Harmer has a patent granted before Ohlsen filed his application. The Examiners-in-Chief reversed the decision of the Examiner of Interferences and awarded priority in favor of Ohlsen on the ground that he first had knowledge of the main plan of the invention and suggested the main improvements in the Cheshire valve to Harmer. Concerning the following state of facts there appears to be no dispute. In the year 1904 and for some time thereafter both Ohlsen and Harmer were employees of the National Electric Company and its successor, the National Brake & Electric Company, the assignee of the Ohlsen application. At that time this company was manufacturing the Cheshire valve, and Ohlsen, who was an expert in this line, constructed a model of a valve in which he endeavored to remedy certain defects that he had detected in the Cheshire construction. After completing the model he showed it to Harmer and sought to secure his services in promoting the invention. Harmer was impressed with the advantages of the valve, and a partnership arrangement was entered into by which Harmer was to pay part of the expense of making a commercial valve and was to endeavor to secure its adoption by some manufacturing concern. Drawings and patterns, were made of the Ohlsen valve and an order given to one Braun for the construction of two valves. During the process of their manufacture it was decided to substitute a cross-head for the pin-and-slot connection of the Ohlsen model for actuating the sliding valve. One of the two valves which had been ordered was accordingly constructed with a cross-head, while the other valve embodied the pin-and-slot connection. The officers of the National Electric Company decided that this valve was an improvement upon the Cheshire valve and adopted it as their commercial valve. They took an assignment from Harmer and Ohlsen, whom they understood to be joint inventors, paying each the sum of ninety-five dollars. An application for a patent in the name of Harmer and Ohlsen as joint inventors was prepared in the fall of 1906; but Harmer, who had in the meantime entered the employ of the Allis-Chalmers Company, declined to execute said application. Shortly afterward Harmer filed his application as sole inventor, and a patent issued thereon to the Allis-Chalmers Company as assignee on January 24, 1907. Upon learning of this the officers of the National Brake & Electric Company, after investigation, decided that Ohlsen was the real inventor of the valve, and an application was accordingly filed in the name of Ohlsen as the sole inventor. This application was executed by Ohlsen and assigned to the National Brake & Electric Company. Subsequently Ohlsen also entered the employ of the Allis-Chalmers Company. It is admitted in the brief filed by Harmer that Ohlsen alone is the inventor of the pin-and-slot form of valve, which embodied many improvements over the Cheshire valve, such as having the stem central in the casing, dispensing with the ring at the ground joint, lessening the eccentricity, the substitution of an eccentric-pin for the shoeshaped end portion on the stem, and the extension of the lugs entirely across the slide to form parallel ways for the eccentric-pin and the adjustable connection of the ways to compensate for the wear. As heretofore stated, one of the two specimen valves was constructed with a cross-head or rectangular block provided with an aperture which received the eccentric-pin, while in the other form the eccentricpin moved between parallel ways or shoulders formed upon the valve. The purpose of the cross-head was to reduce the wear incident to the other form of construction, and each count of the issue embodies as an element said cross-head or block. The decision of the Examiner of Interferences turned upon the question of who was the first to suggest said cross-head, and he held that the testimony fails to establish that Ohlsen, upon whom rests the burden of proof, was the inventor thereof. The Examiners-inChief, on the other hand, held that the block or cross-head, while an essential feature of the issue, is not for the purpose of this case regarded as of great importance and that since the testimony shows that Ohlsen made the other and main improvements on the Cheshire valve he was entitled to the award of priority. It is admitted by Harmer that all the improvements except the block or cross-head were originated by Ohlsen; but he contends that the cross-head is an essential element of the issue and that Ohlsen testified that it was the suggestion of another. Concerning the suggestion of the cross-head Ohlsen testified as follows: X-Q. 1344. Were any valves built according to the drawings made by your son, under your direction, that is, the drawings made under your direction? A. Mr. Harmer and I had two of them valves made, of which one was changed while the valves were in process of making. X-Q. 1345. How was one of them changed? A. In one of them a cross-head or auxiliary slide was put in, and the adjustable parallels done away with. X-Q. 1346. Why was one of them changed? A. Talking the matter over with some boys in the shop, one of them, if I ain't mistaken, it was Harry Maker, thought we would do better putting a crosshead in place of the adjustable parallels. That's why one of them was changed with the block or cross-head. Ohlsen repeatedly testified that Harmer did not mention the block or cross-head until after Maker suggested it. (RD. Q. 1930, 1931, 1970, 2003.) The extent of this suggestion and the work done by Ohlsen in carrying it out appear from the following testimony of Ohlsen: RD. Q. 2000. Was there anything said about how the cross-head should be arranged? A. No. RD. Q. 2001. Did you say anything about it? A. No, not that I can think of. RD. Q. 2002. But you figured out in your mind just how you would arrange and construct it? A. Yes. RD. Q. 2023. Now, just how much of a mention was made about a crosshead? A. As close as I can think of, it was said, “don't you people think you would do better if you put a cross-head in that valve; " that's about all that was said about it. RD. Q. 2024. Do you recall who said it? A. It was Mr. Maker that said it; I guess it was Mr. Maker that said it. RD. Q. 2025. Then was Mr. Maker one of the boys among whom that socalled shop discussion took place? A. Yes, he was one of them, RD. Q. 2026. Did he say where or how it should be put in? A. No sir, nothing said about it. RD. Q. 2027. But in your own mind you studied it out as to how the crosshead should be arranged and constructed to properly work together with the other parts of the valve that Mr. Braun was then making? A. Yes. RD. Q. 1940. Had you made any sketches of how the parts would look with the cross-head put in? A. No. RD. Q. 1941. Well, then, how did Mr. Braun know just how to make that cross-head? A. The cross-head I made myself. RD. Q. 1942. When? A. In December, 1904. As stated above, no testimony was taken on behalf of Harmer; but he was called on as a witness by Ohlsen's assignee. It does not |