field house regarding B. Worth & Sons. The following appears in the letter from the Sheffield house: B. Worth was a Sheffield razor-grinder and we believe still works at the stone. His son married a little money and they blossomed out as cutlery manufacturers under the name of B. Worth & Sons, their chief line being razors, but they also make carvers, table-cutlery and butcher-knives and we believe a few pen and pocket knives. The son manages the business here. We do not think they have an agent in the U. S. but are informed that they have the support either through a relative or friendly interest of some one in one of the large hardware houses, probably Supplee's, and that this house are the only handlers of their goods in the U. S. That the marks "Worth" and "Our Worth," being appropriated to goods of the same descriptive qualities, would be likely to cause confusion in the mind of the public and to deceive purchasers, is too plain to admit of argument. Under section 7 of the Trade-Mark Act it is made the duty of the Commissioner of Patents to decline to register a mark when such conditions exist. Having discovered by a reference to the records of the Patent Office evidence of the prior use of the mark "Worth" by another firm, the Commissioner in the performance of his duty brought that evidence to the attention of the applicant. The burden thereupon rested upon the applicant to convince the Commissioner, by the production of reasonable and satisfactory proof, either that the applicant was the first to adopt and use the mark, or that its use had been abandoned by B. Worth & Sons. We agree with the Commissioner that the evidence submitted is not sufficient to sustain the burden thus placed upon the applicant. The affidavit of Mr. Nash fails to state the extent of the investigation conducted by him, and the statement in the letter from the Sheffield house to the effect that the Supplees are the only handlers of B. Worth & Sons goods in the United States, taken in connection with the applicant's failure to file the response by the Supplee Company to the letter written by Mr. Buch, indicates a present use of the mark in this country by B. Worth & Sons. We conclude, therefore, that the Commissioner was right in declining to register the mark to applicant. This conclusion renders it unnecessary to determine whether the mark "Our Worth" is descriptive of quality within the meaning of the Trade-Mark Act. The decision of the Commissioner of Patents is affirmed, and the clerk of this court will certify this opinion and the proceedings in this court to the Commissioner of Patents, as required by law. [Court of Appeals of the District of Columbia.] NELSON V. FAUCETTE. Decided April 6, 1909. 143 O. G., 1348; 33 App. D. C., 217. 1. INTERFERENCE-PRIORITY-DILIGENCE-GENERAL RULE, "The question of diligence is one depending upon the facts in each case. What is reasonable time in one case may, under the circumstances, be unreasonable in another. The courts will grant great latitude when the inventor has been delayed by reason of circumstances over which he has no control; but where the delay is caused by the negligence of the inventor, or for a manifest ulterior purpose, no leniency whatever should be extended." 2. SAME DILIGENCE-DELAY FOR PURPOSE OF DISPOSING OF PRIOR INVENTION. Where N. conceived the invention of the issue on October 13, 1904, and reduced the same to practice on October 26, 1905, by the filing of his application, and F. conceived the invention on June 30, 1905, and reduced the same to actual practice on July 31, 1905, and it appears that N. did not disclose the invention to any one except a few of his friends confidentially until after the filing of his application, and his excuse for failure to reduce the same to practice was that he had sold a prior invention of the same nature to his employers and was attempting also to sell the invention of the issue to them, that they would likely interfere should he attempt to do anything with it, and that he was waiting to see what claims would be allowed on his prior application, Held that the excuse for the delay is insufficient. 3. SAME-REDUCTION TO PRACTICE-SIMPLE DEVICE. The making of drawings of a cutter-head for a planing-machine and the disclosure of the invention to others Held not sufficient to entitle the inventor to an award of priority as against one later to conceive, but first to reduce the invention to practice. Mr. H. P. Doolittle and Mr. Luther V. Moulton for the appellant. Mr. J. Nota McGill and Mr. T. J. Geisler for the appellee. VAN ORSDELL. J.: This is an appeal from a decision of the Commissioner of Patents in an interference proceeding awarding judgment of priority of invention to the appelle Faucette. The invention in issue is a cutterhead for wood-planing machines, holding several removable blades and designed to rotate at a rapid rate. The issue is defined in the single count, as follows: The combination of a cylinder having a longitudinal channel, a clamping-bar adjustable in the channel, interlocking means between the bar and the bottom of the channel, a cutter between the bar and one wall of the channel, and screws in the bar with their heads engaging the other wall of the channel. It is conceded in the brief of counsel for appellant that the dates established by the Examiner of Interferences are correct. It appears from an examination of the opinion of the Examiner that the ap pellee Faucette conceived the invention in issue June 30, 1905; and that he reduced it to practice July 31, 1905, by the placing of the cutter-head in successful operation. It further appears that, on July 19, 1904, appellant placed with his attorney an application for patent on another form of cutter-head, the one in issue being an improvement thereon, upon which Patent No. 815,549 was issued on March 20, 1906. It was also found by the Examiner that the appellant conceived the invention in issue on October 13, 1904, but that he failed to reduce his invention to practice prior to the filing of his application. It therefore appears that while appellant was the first to conceive the invention in issue, which fact is admitted by appellee, he was the last to reduce the invention to practice. The application of appellant, which eventuated into the patent here in interference, was filed October 26, 1905, and the application of appellee was filed December 14, 1905. The sole question to be determined is, whether appellant was diligent in reducing the invention to practice. The question of diligence is one depending upon the facts in each case. What is reason able time in one case may, under the circumstances, be unreasonable in another. The courts will grant great latitude when the inventor has been delayed by reason of circumstances over which he has no control, but where the delay is caused by the negligence of the inventor, or for a manifest ulterior purpose, no leniency whatever should be extended. The facts in this case, we think, clearly bring it within the latter class. It appears that, during the period from June 30, 1905, when appellee came into the field, up to appellant's filing date, October 26, 1905, appellant was doing nothing toward reducing his invention to practice. During this period, appellee was rushing his invention to completion. It was only sixty days from the time of his disclosure until the machine had been constructed and successfully put in operation. While appellant cannot be charged with lack of diligence until appellee came into the field, it is proper to note that appellee did in sixty days what it took appellant more than fifteen months to accomplish. Even this delay is not sufficient to establish lack of diligence if supported by a reasonable excuse, but we think the explanation offered by appellant does not meet this requirement. Appellant's own evidence establishes that his sole object in delaying the reduction of his invention to practice was to enable him to secure a patent upon his earlier device. Regardless of the need of the public for the improved machine, he was holding it back to enable him to dispose of the former invention for which he had already made application for patent. As said by the Commissioner in his opinion: Voluntary delays in proceeding with an invention and placing it in condition where the public can secure the benefit of the inventor's labors are taken at the risk that a more diligent inventor may come forward in the meantime and offer the consideration for which a patent is granted. An examination of the record fails to disclose that the invention in issue was actually reduced to practice by appellant prior to the filing of his application, while appellee reduced the invention to practice some time prior to appellant's filing date. It appears from the evidence that appellant began negotiations with the American Wood Working Machinery Company, for which he was a traveling salesman, for the sale of his earlier device on July 19, 1904, about the time the application covering that device was being prepared. No sale, however, was effected until June 11, 1906. Although the invention in issue is an improvement on the earlier device, and was conceived by appellant shortly after these negotiations were begun, the attention of the company was not called to the later device, and it was disclosed but to a few friends confidentially, until after the filing of the second application. In explanation of his delay in filing an application, and his failure to reduce the machine in issue to practice, he said: I did not see my way clear to make it and I was expecting to sell it to our company, they have bought the first patent, which was quite similar and I felt that they would likely interfere should I attempt to do anything else with it. He also states that he was waiting to see what claims would be allowed on the first patent. Circumstances of this character are not sufficient to excuse the delay of an inventor in protecting his invention, especially where another, coming into the field during the period of the delay and exercising the greatest diligence, pushes his invention to successful operation. We are not impressed with the other contention of appellant that the invention in issue is so simple that the completion of the drawings of it by appellant and the disclosure of the same to others in 1904, were sufficient to entitle him to an award of priority. It was found by the three tribunals of the Patent Office that, in view of the hard usage to which the device in issue would be subjected in actual practice, even the construction of the machine, in the absence of a test as to its ability to perform the functions claimed for it, would not constitute a reduction to practice. With this conclusion we agree. The decision of the Commissioner is affirmed, and the clerk is directed to certify these proceedings as by law required. [Court of Appeals of the District of Columbia.] IN RE EASTWOOD. Decided April 19, 1909. 144 O. G., 819; 33 App. D. C., 291. 1. PATENTABILITY-APPARATUS FOR BREAKING AND TRANSPORTING IRON PRODUCTS-INVENTION. A device for breaking and transporting magnetic products, consisting of the combination of an electromagnet, a hoisting device therefor, and a weight adapted to be hoisted and dropped upon materials to be crushed, Held to involve patentable invention over the prior art, which discloses in one patent a device for the same purpose consisting of mechanical means for hoisting a weight and releasing it and in another a magnet simply for hoisting and conveying magnetic materials. The invention lies in a new combination, which was not obvious in view of the prior art. 2. SAME EVIDENCE OF INVENTION. Where the patents of the prior art were in existence for many years without suggesting to any one the useful device sought to be patented, and affidavits of those skilled in the art and having full knowledge of the anticipating devices are filed averring that the device sought to be patented never occurred to them, and the improvement is shown to be of great practical utility, Held that these facts constitute evidence that the improvement was not an obvious one. Mr. W. L. Pierce and Mr. Karl Fenning for the appellant. ROBB, J.: This is an appeal from the decision of the Commissioner of Patents denying appellant's application for the grant of a patent for "improvements in apparatus for breaking and transporting iron products," the ground for the ruling being that the claims do not involve patentable novelty over the prior art. We reproduce the appellant's description of his invention as set forth in his specification: My invention relates to a new and useful combination of devices for breaking up and handling products of iron or steel which it is desired to remelt or otherwise treat. These products may be in the form of skulls as they are called, which are composed of steel or iron which accumulates on the inner lining of ladles which have been filled with the molten metal, castings which have come from the sand in imperfect condition, worn-out machinery which has been scrapped, etc. In the past this material has been broken up by what is commonly known as a "skull-cracker," which consists of a tripod fifty to seventy-five feet high, arranged at the top of the structure with a sheave, over which passes a hoisting-cable. The free end of the cable is provided with a hook which may be tripped by means of a rope. This hook engages an eye in a heavy-weight which s hoisted by means of a suitable engine attached to the cable. When the eight has reached the requisite height, it is tripped by the operator who |