Regarding the nature of the invention in issue, the Board of Examiners said:

In the old practice of wire-drawing after the end of the wire rod was pointed by swaging it was inserted in the die and on an ancillary machine sufficient length of wire drawn through the die to extend from the die-holder of the main machine to the drawing-block, as the drum or reel which draws the wire from the die and on which it is wound is called. A sufficient length of wire had to be provided in the reduced end also for extending into the bite of the vise or tongs, as the gripping mechanism on the drum or block is called. After a suitable length of wire was drawn through the die for this purpose, the latter, with the reduced end of the wire extending through it, was then transferred to the die-holder of the main machine, the projecting end of the wire inserted in the jaws of the block and the latter rotated to draw and reel the wire. The preliminary drawing operation above referred to took time and also required the end of the wire so drawn to be removed and discarded or scraped by reason of an irregularity formed thereon, and to obviate these objections a block known as the Morgan block had been devised and introduced into use, in which the vise for receiving the end of the wire is pivoted to the block so that it can swing from a position in which it extends beyond the periphery to a position lying within the circumference of the block, the die-holder also being pivoted so that it may swing the die into a position in close proximity to the vise when the latter is swung to its outer position. By thus modifying the old block but a short length of wire is necessary to extend through the die and be gripped by the vise of the block, and it is therefore possible to dispense with the preliminary step of drawing the length of wire through the die referred to above. The construction just described was in common use long prior to the date when the invention which constitutes the issue of this interference was made by any of the parties. * * Now it is well known that if a speed which is usually practicable for the major part of the drawing operation be given to the wire initially the shock of the first tug of the block before the metal of the wire begins to be displaced by the die will frequently cause it to snap. Various expedients have been adopted to prevent this mishap, such as a spiral on the block leading the wire from a point toward the center of the block gradually to the periphery. This feature, though not comprised in the present invention, is present in the structure disclosed by Smith and Hine. The invention of the issue is another means of meeting the same difficulty. For this purpose the pivotal points of the die-holding arm, the axis of the block and the vise on the block are so arranged with reference to the length of the arm and vise respectively that these elements may be brought into substantial alinement in a line connecting the axis of the block and the pivot of the die-holder, the die and the jaws of the vise in this position registering. When the drawing is started with the parts in this initial position the wire is carried during a por tion of the first revolution from its radial direction with respect to the block, to the periphery, so that the initial pull is very slow but is accelerated rapidly until it equals the peripheral speed of the block. By this method of operation no snap is given to the wire when the machine starts so that a much higher speed can be given to the block as a whole in starting without corresponding risk of snapping the wire. The essence of the invention, in fact the only invention involved, is therefore so proportioning and arranging the parts, themselves old in the art, that the machine starts with the die-holder and vise in a position radial to the axis of the block.

Appellee's application was filed on July 6, 1903, while appellant's application was not filed until March 11, 1904. The record clearly

shows that appellant conceived the invention in issue in November or December, 1901, and reduced to practice in an operative device in December, 1903. Prior to appellant's date of conception, appellee made drawings of a wire-block, which block (described in the record as the No. 7 block) was installed at the Coe Brass Works and operated on August 24, 1901. It is contended by counsel for appellant that this block did not embody the irvention in issue, and upon this point the case must turn.

Appellee testified that block No. 7 was started with the vise and die-holder in radial position as called for by the issue, and that it was constructed with that end in view. It is well settled that the uncorroborated testimony of an inventor is not sufficient to establish either a conception or a reduction to practice. Although the drawings from which the No. 7 block was made, fail to disclose the feature of the radial start, appellee attempts to point out that such an operation must necessarily follow from the construction shown. Speaking of the drawings, the Board of Examiners-in-Chief said:

These blue-prints, however, show nothing more than that the drawing of the wire must have begun with the wire in a line secant to the drawing-face of the drum, and as it proceeded the wire swung outward to the periphery of the block. From these prints it cannot be determined whether the machine was adapted to swing into a radial position or not.

None of the witnesses who testified on behalf of appellee corroborate him as to the radial start. One Westerman, foreman of the wire department of the Coe Brass Company, upon being asked what were the new features of this block, said:

The new features were the absence of the draw-bar. In pulling in wire in a die, the old way is to pull it in about two feet by means of a draw-bar; then it is put into the vise of the block and started up and drawn through, and the improved block was to do away with the draw-bar and start in the wire direct on the block.

Hine, one of the parties to the interference in the tribunals below, (the issue between him and appellee being one of originality,) on being asked if the various elements were so arranged as to permit of a radial start, answered, "I presume they were; " but when pressed for an answer from personal knowledge, he said:

Why, this is a technical question that I wouldn't be able to answer positively. However, when asked whether any of the machines constructed before the filing of his application in June, 1905, had the radial start, his answer was an unqualified "Yes." He could not state, however, how long prior to his application these machines had been constructed.

The Commissioner found corroboration of appellee's statement as to the radial start in the testimony of one Blakeslee, a witness called in rebuttal on behalf of appellant, that the shorter the point of the

wire was made, the more the die-holder and vise would have to be swung toward a radial position in order to get a sufficient grip upon it. The evidence shows that the points were made from four to eight inches long. The Commissioner also found corroboration in the testimony of one Northrop, also called in rebuttal by appellant, that

the wire would be placed in the vise in a radial position, but the wire would not start through the die until the vise had left the radial position.

There is positive evidence, however, that it was impossible to start the drawing operation with the wire directed radially on the block. This the Commissioner admits, saying:

While it may be true that the actual drawing or reduction of the wire did not begin until after the parts had left the radial position, it does not appear that the issue contemplates an actual reduction of the wire while the parts are still in the radial position or that this operation takes place in the Thompson machine.

With his conclusion, we cannot agree. The invention in issue differs from the prior art only in providing a means for preventing the initial shock to the wire when the drawing operation is begun. This purpose is not subserved if the wire has left the radial position before it starts through the die, even though it may be possible to place the wire in the vise in such position.

From a careful examination of the record, we are forced to the conclusion that the radial start was not in appellee's mind when he constructed the No. 7 block, and was not communicated to any one else until after appellant entered the field. It is contended by counsel for appellee that it was proved by certain drawings made in 1907, after all the evidence in this case was submitted, that the die-holder and vise could be brought into the radial position. These drawings were properly rejected by the tribunals below as improper evidence to be considered in the case. The drawings, if admissible, would not have availed much, in the absence of evidence that this position was ever utilized to secure a radial start of the drawing operation. The evidence is conclusive that it could not be so adjusted. But, conceding for the moment that appellee's die-holder and vise were capable of being moved into the radial position, it was accidentally discovered after appellant's invention had become known; and appellee cannot be held, as against the rights of appellant, to have contributed anything to the art. Mere accidental practice does not constitute reduction to practice. (Gaylor v. Wilder, 10 How., 177.) In Tilghman v. Proctor (C. D., 1881, 163; 19 O. G., 859; 102 U. S., 707) Mr. Justice Bradley, delivering the opinion of the Court, said:

The accidental effects produced in the Daniell's water-barometer and in alther's process for purifying fats and oils preparatory to soap-making, are of

the same character. They revealed no process for the manufacture of fat acids. If the acids were accidentally and unwittingly produced while the operators were in pursuit of other and different results, without exciting attention, and without its even being known what was done or how it had been done, it would be absurd to say that this was an anticipation of Tilghman's discovery.

Our conclusion is that, with regard to the radial start, the invention here in issue, appellee made no such contribution to the art as to constitute an anticipation of appellant's invention, which is conceded by all parties to meet perfectly every element of the issue.

The decision of the Commissioner of Patents is reversed, and the clerk is directed to certify these proceedings as by law required.

[Court of Appeals of the District of Columbia.]

JOHNSON v. MUESER.

Decided February 5, 1907.

145 O. G., 764; 29 App. D. C., 61.

1. INTERFERENCE-PATENTABILITY OF THE Issue-JubISDICTION OF THE COURT OF

APPEALS.

The question of the patentability of the issue of an interference is not a Jurisdictional one, and the Court of Appeals of the District of Columbia will not review the action of the Patent Office holding the issue patentable, but will confine its consideration to the question of priority.

Evidence considered and Held insufficient to establish a conception by J. prior to the date of filing of M.'s application.

Mr. James A. Carr and Mr. Melville Church for the appellant. Mr. William R. Baird for the appellee.

SHEPARD, C. J.:

Albert L. Johnson appeals from the decision of the Commissioner of Patents awarding priority to William Mueser (C. D., 1906, 399; 124 O..G., 2533) of the invention of the following issue of interference:

1. A metal bar having substantially the same cross-sectional area throughout its length, for use as a core to be embedded in concrete, the surface of all the sides of which is provided with a large number of interruptions of its continuity, whereby it presents a substantially continuous but actually much interrupted surface.

2. A compound bar or unit of construction consisting of a metal bar having substantially the same cross-sectional area throughout its length and the surface of all of its sides provided with a large number of interruptions of its continuity whereby it presents a substantially continuous but actually much interrupted surface, embedded in an envelop of concrete.

Mueser's application was filed July 6, 1903; Johnson's on February 19, 1904. The issue covers a part only of the claims of Johnson. On November 2, 1904, Mueser filed a motion to dissolve the interference, on the grounds of no interference in fact, irregularity in declaration, and that Johnson had no right, under his application, to make the claims of the issue. Johnson also moved to dissolve, on the ground of irregularity and want of patentability of the claims of the issue. The irregularity alleged was that the claims are obscure and vague. Want of patentable novelty was charged in that, first, the claims call for nothing more than the roughening of a plain bar; and, second, because anticipated by a number of patents named, including one issued to him September 19, 1899, No. 623,285.

The interference was suspended pending consideration of these motions by the Primary Examiner, to whom they were referred for action. The Examiner overruled both motions. Mueser acquiesced in the decision. Johnson appealed both to the Examiners-in-Chief, who refused to entertain the same for want of jurisdiction, under the Patent Office rules governing such procedure, and to the Commissioner. The latter affirmed the Primary Examiner in the following decision:

The Examiner held that there had been no such irregularity in the declaration of the interference as to preclude proper determination of the question of priority of invention.

It is contended by Johnson upon this appeal that there has been such irregularity in declaring the interference for the reason that the claims corresponding to the issue are vague and indefinite.

Johnson urges that the phrase "a large number of interruptions" as used in the claims is indeterminate and also that the phrase "whereby it presents a substantially continuous but actually much interrupted surface" is contradictory in its nature. While it is true that there are a larger number of “interruptions" provided on the surface of the sides of the metal bar disclosed by one of the parties than by the other, still it is thought that this phrase was sufficiently definite to cover the generic invention. While it is possible that more definite language could be used in defining the structure than the statement which has been adopted, it is believed that the phrase defines the character of the surface of the bar with sufficient clearness to enable the award of a proper judgment of priority of invention. At all events, the language objected to by Johnson does not render the claims so vague and indefinite as to warrant the dissolution of the interference.

The interference proceeding was resumed before the Examiner of Interferences who, in a decision carefully reviewing the questions in controversy, awarded priority to Mueser. This decision was in turn affirmed by the Examiners-in-Chief and the Commissioner.

The first contention of the appellant is that the decision be reversed on the ground urged in his motion to dissolve the interference, namely, that the invention of the issue is not patentable.