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lay claim to the invention, nor did he say that the company or Smith was taking anything from him, although at the time of these conversations at least a dozen had been made by the company and tested and treated throughout as its own.
Emil Senniger's and Charles T. Bothe's testimony is immaterial.
August Lenge, a mechanic in the shop, who had been there three years, knew Leeman and know he worked on the wooden patterns. He himself made the handle for the cut-out in question, receiving his directions from Mr. Bremer. He did not know whose invention it was and had heard only that it was invented by the principals.
Charles Kaiser, a mechanic who had been at the shop for five years, understood that the invention was Mr. Heisler's. He helped Mr. Beck work on these cut-outs.
Conrad Beck, a mechanic there, says that Leeman never laid claim to this cut-out until a few days before his evidence was taken.
Louis Eisenhardt, the keeper of a boarding house and bar, apparently saw this invention at Bollin's shop. This was, as he thinks, tiro days after the Concordia picnic, which is shown elsewhere to lave been on Sunday, May 26, 1889, on which invention Leeman said that he would like to get a patent; that he had made it and would like to get a patent on it. He knows nothing about electricity. It would appear that the time when Leeman showed him this model might have been after he left the Heisler works. (Question 73 and answer.) He saw Leeman many times and talked with him; but at no time does it appear that Leeman claimed to him that he had an invention which was being taken away from him at the Heisler works.
John David Bollin, a machinist, knew Leeman and saw him at Bol. lin's shop, and saw a key like that of the invention, of which Leeman said he was going to take a patent out on it. Bollin saw him show it to Tobler, and possibly to Leo Werner, and heard him esplain the invention. He says this was in May, 1889. The witness is silent as to any claim by Leeman that the invention was his and was being taken from him by the Heisler Company or by anybody connected with it.
Leeman says that he did not claim the invention to Smith for fear of being discharged. He may have been in such fear; but if so it is astonishing that no word fell from his lips to any of these intimates showing that he was being wrongfully deprived of an invention that was his.
Again, Leemau had great confidence in Charles Heisler, for he says that he had it in inind to offer his claimed invention to him. Whether he had any invention to offer is the question to be decided here; but whether he had or not his willingness to trust Heisler is clear. But if Leeman, at the time of the unsuccessful test, when Smith and Heisler were present, in May, 1889, had a full general conception of an electric cut-out in 1886, passing by for the time his preliminary statement of first conception in May, 1889, it is strange that he did not make the suggestion to Heisler that he had the solution of the unfortunate diffi.
culty into which the company and Heisler personally were thrown by the bad failure of the test upon which the negotiations were hanging for the sale of the plant and the system.
In Atlantic Works v. Brady (C. D., 1883, 214; 23 O. G., 1330; 107 U. S., 192, 203) the Court, commenting upon the claim of Brady to an improvement which had been disclosed to him by General McAlester some time before, and upon which Brady had taken out a patent, says:
The witnesses who speak of his conversations and sketches in Decoinber, 1863, and early in 1866, as communicated to them with the utmost freedom, with no apparent object so far as they were concerned, must either be mistaken as to the time or as to the devices described. Interested as he is in the result of the suit his own testimony cannot be allowed to prevail against a course of conduct so utterly at variance with it. It may be true; but we cannot give it effect against what he himself did and did not do without disregarding the ordinary laws that govern human conduct.
The sketches shown by Leeman and claimed to have been made in 1886, being without date, together with his testimony upon them, must be laid out of the case as contradicting his preliminary statement.
Nothing can be inferred from the fact that Smith sent for Leeman, offered to employ him again, asked him what he wanted, and spoke of compromising and settling their differences, for the law favors coinpromises and does not permit statements in such conferences to be weighed against the party waking them.
I have examined this record, as hereinbefore shown, upon the question whether in the time of these transactions Leeman's acts and words were those of a wronged inventor, and this in order to get light upon the question whether he was the inventor of this issue. Leeman's case, as this record presents it, requires him to prove also his connection with this regular manufacture in the shop. It is not claimed by him that this regular and open manufacture of the invention came about by his disclosures to some subordivate and through him to the managers. As the evidence goes bis disclosure must have been directly to Charles Heisler or directly to Smith. There is entire failure to show any disclosure by Leeman to Heisler, from which this manufacture proceeded. Is there any showing of a disclosure by Leeman to Smith ? And, further, such disclosure to Sinith, if there be any in this record, must be prior to this reduction to practice through the regular manu. facture in the shop, or else this reduction to practice and this manufacture did not proceed from such disclosure. That essential to Leeman's success is determined against him by Leeman himself. Leeman says that he got acquainted with Smith after that dozen were completed, (question 76 and answer,) and therefore they were completed before and without any disclosure of invention by Leeman to Smith.
On the other hand, it positively appears that this much-sought device took form coincidently with the coming of Smith to the works. Leomau testifies that he did not tell Smith that it was his own invention. (Page 149.) Smith testifies that about May 16, 1889, he explained it to
Bremer and gave directions to have it made and then went to Kansas City, leaving about the 20th of May; that he returned soon after and saw the completed invention. Bremer, the electrical and mechanical engineer at the Heisler works, testifies that Smith, upon seeing the test of the detëctive cut-out, explained its defects and pointed out the cause as being too great a quantity of material to be fused, requiring too much time, with a liability to set the material on fire, and that the action had to be in a smaller part, and that it would be advisable that the air should be excluded to prevent any burning or smoking; that he then explained a device like the invention in controversy and made sketches. Bremer further testifies that he had a model made in accordance with these instructions while Smith was away in Kansas City, and that Conrad Beck made it.
The verbal testimony of the witnesses is conflicting and confusing in an unusual degree; but those facts that are beyond the control of witnesses and those about which there is no dispute constitute the chief strength of Smith's case. Charles Heisler, when talked to by Leeman and shown keys like that in Exhibit No. 8 or Smith's Exhibit No. 3, acted as though the whole thing belonged to the company, as Leeman testifies, (page 129;) but this action of Heisler was after-Smith says and Bremer says-orders had been given by Smith that the cut-outs should be made, and most probably after the cut-outs were made in the regular course of things in the shop. It was also after Heisler had parted with his interests in the company, when his conduct as well as his words would be likely to be little influenced by his interests. It must, therefore, be considered that Heisler's actions, as the events were transpiring, he having been present at the test of the unsucessful cut out, and whatever took place between Sunith and Leeman at the time when Leeman now says that he disclosed the invention to Smith are strong evidence in favor of Smith and against Leeman.
Heisler says that he has no knowledge of Leeman's having made any invention or inventions relating to electrical science or appliances or apparatus. At the time that the test of the unsucessful cut-out was made Heisler says that Smith expressed the opinion that the difficul. ties which we met with in our experiments or tests could be removed.
It is not to be denied that there are also many difficulties in the way of Smith. His unproduced sketch is one. Leeman's rebuttal testimony, that the leaves from the record of tests at the Illuminating Com. pany's station had been removed; that they showed the test to have been made later than Smith claims, and that the invention was therein put down to the credit of Leeman, are such circumstances; but on this matter Smith promptly made a motion before the then Commissioner for the right to take surrebuttal testimony on this point, which was denied upon the ground that it would not be material. The circumstances showing Smith to be the original inventor do not depend upon the date of that test; nor could that record, whether giving credit to
Leeman as the inventor or to Smith, be of great moment, because, being made by a third party, not at the instance of either Smith or Leeman, it could not be construed as an admission by either against himself.
The rights of subordinates in an establishment of this kind to such inventions as they may make are at all times the objects of the jealous care of courts and tribunals before which the question of priority or originality may come; but, putting a favorable construction upon Leeman's testimony and upon his acts, the broad fact yet remains that the invention was embodied in material form at the shop in the usual way and openly manufactured there without a word or circumstance or fact occurring at the time showing Leeman to be the inventor. The direct testimony of Smith that he invented this device, that the sale of the establishment was carried out because he had it, the direct testimony of Bremer, the mechanical engineer in the establishment, that Smith gave the directions to him and he in turn to the workmen which resulter in its reduction to practice and in its manufacture, and, still more, that there is no indisputable fact that is not conformable to this theory, together with this, that the acts of both Leeman and Smith are more conformable to the usual course and to probability upon this theory than upon any other, lead to the conclusion that Smith originated this and that Leeman did not.
The decision of the Examiners-in-Chief is affirmed.
EX PARTE SNIDER.
Decided December 30, 1893.
66 O. G., 1309.
1. ANTICIPATION-IMMATERIAL DIFFERENCES IN CONSTRUCTION.
Where the only differences in the applicant's structure over those in the reforences resided in the skill of its construction, Held that such differences embodied no exercise of the inventive faoulty nor any change not fully within the range
of mechanical ingenuity. 2. AS TO THE DOCTRINE THAT DOUBT OF INVENTION SHOULD BE RESOLVED IN
FAVOR OF THE APPLICANT. There being no doubt as to lack of invention in this case, there is no room for consideration of the doctrine which the appellant enunciatos-tbat in cases of doubt of invention that doubt should be resolved in favor of the applicant.
APPEAL from the Examiners-in-Chief.
Application of Sidney W. Snider filed April 13, 1892, No. 429,036. Messrs. C. A. Snow & Co. for the applicant.
Appeal is taken from the decision of the Examiners-in-Chief rejecting the following claim:
The combination of twin spiral springs formed of a single continuous wire and the interniediate integral bridge comprising a coil B, connected at one end to tho top coil of one spring by a loop C, and a straight brace F, connected at one end to the top coil of the other spring, extending diametrically across and lying upon the upper surfaces of both sides of the coil and terminating in a loop E, which is connected to said coil, said loops C and E being interlocked, substantially as specified.
The references cited against this claim are Burnham, February 25, 1879, No. 212,656; Bronson, June 3, 1879, No. 216,142; Wildermuth, October 14, 1879, No. 220,557; Laycock, March 7, 1882, No. 254,663.
The claimed improvement in bed-springs has for its object to provide twin springs united by a bridge, so arranged as to occupy the interven. ing space between the springs and to distribute the strain and to provide against derangement. The twin springs and bridge are made of one wire, which, at one side of the bridge is locked through the loop between the bridge and the spring and carried across the bridge to the other coil. This locking is the only material point of difference between this device and others which precede.
Bronson's springs, in pairs, are made out of one piece of material. The bridge between the two coils has all the advantages of the appellant's in partially filling up the space between the coils, in distributing the strain, and in providing against derangement. Bronson's bridge is a small coiled spring formed from the same piece of wire, and being smaller and of fewer coils it yields but little under strain and so meas. urably covers the point of advantage claimed by the appellant; but if, by reason of the bridge being itself a spring of, say, three coils, it should be found to yield too much to lateral strain, and thus allow the pairs of springs to separate too widely at the top, nothing would be easier than to form the bridge of two coils or of one coil; or if Bronson's bridge were completed by carrying the wire from the lower side of the bridge-coil upward, outside of the second coil and inside of the upper onc, it would form a lock connection between the bridge and one adjacent coil that would be a positive connection between the coil and the bridge-coil.
So of Wildermuth, as to which the appellant claims that the bridge is too yielding laterally; but were that found to be so nothing could be simpler than to pass the wire through the loops already formed at B B' in Wildermuth's Fig. 3, and so form the positive comectiou shown in the appellant's device.
The inost casual inspection of the cases cited in support of the appel. lant's contention—for example, Topliff v. Toplif (C. D., 1892, 102; 59 0. G., 1257; 145 U. S., 156)—shows that the expression quoted from the opinion referred to differences of construction and of function so wide as to make the citation inapposite in this case.