WIRE FENCE.

Application of Michael M. Shellaberger filed August 14, 1891, No. 402,669.

Application of Peter Sommer, John Sommer, and Peter W. Sommer filed April 24, 1890, No. 349,556.

Messrs. R. S. and A. P. Lacey for Shellaberger, (Messrs. Offield, Towle, and Linthicum, of counsel.)

Mr. W. V. Tefft and Mr. H. H. Bliss for Sommer et al.

SEYMOUR, Commissioner:

This is an appeal taken by Sommer, Sommer, and Sommer from the decision of the Examiners-in-Chief, awarding priority to Shellaberger on the following issue:

A wire strip consisting of border-strands and a parallel intermediate strand or strands which are connected by interposed zigzag mesh-wires at their angles by coils engaging corresponding coils in the strands, the intersection of two mesh-wires with the intermediate strand being arranged alternately at regular intervals.

In 1889 Peter Sommer, John Sommer, and Peter W. Sommer were engaged in making wire fence upon their farm near Tremont, Ill., and in March of that year they began the construction of a machine for making it, which was put in operation by hand-power in May of that year. In that month fence-strips of two strands connected with meshwire alternating between the strands and twisted into short cables at the intersecting points were made on this machine, and then a threestrand strip with one mesh-wire, and later a third kind, the Keystone fence, cousisting of about ten strand-wires connected by a mesh-wire passing across the whole series. None of these but the first resembled the construction in question. Soon afterward they built another machine, in which the principal change from the first machine consisted in having more than one shiftable section to coincide with the lower sections. The characteristic feature of the machine was its split twisterheads, the lower sections of which carried strand-wires and the upper shiftable sections mesh-wires, while in the first machine there was but one shiftable section and several lower half-sections, to each of which in turn the shiftable section might be adjusted. Upon this machine fence material was produced of the kind described in the issue, and of the product about eighteen rods were sold to one Haas, in June, 1890, and about eight rods to Schmutz, in April or May of that year. The machine was finished in May, 1890.

The proof of these facts consists not only in the testimony of the Sommers, but Haas has produced and there is in evidence a section of the very fence sold to him in June, 1890, and from that time to the taking of the testimony used as a garden-fence. While the machine was afterward remodeled and strengthened in various parts and converted from a haud-machine into a power-machine, the material parts of the old

machine on which the exhibit fence was made were found and are in evidence and their identity fully established.

The Sommers case is proved beyond a reasonable doubt, and counsel for their opponents do well in admitting formally upon the record that their claimed dates are fully established.

Shellaberger claims to antedate the Sommers on conception and reduction to practice. On or about July 10, 1891, Edward F. Shellaberger, under the direction of his father, M. M. Shellaberger, the junior party in this interference, began the construction of a machine for making three-strand fence strip of the kind described in this issue. It was finished in October, 1891, and upon it two rolls of fence-strip were made while at the Keystone Driller Works, in Beaver Falls. It was not successful, and upon the Shellabergers moving to De Kalb, Ill., in the fall of 1891, there to organize a company for the production of wire tence, this Driller Works machine was discarded and its parts to some extent used in other machines.

At De Kalb a machine of a different character from the Driller Works machine was made, with twister-heads cut in two crosswise, so that the half of one moved from the one strand wire to the next. Upon this machine fence-strip like that described in the issue was produced in commercial quantities and with success by the Shellabergers, beginning in the spring of 1892. A specimen of this strip is in evidence, fully identified as having been made at De Kalb.

So far the Shellaberger record is certain; but it is attempted to carry the conception of this article back to October, 1887, and its construction by hand to January, 1888, and by machinery in the fence department of the Hartman Steel Works, in Beaver Falls, by an attachment to a picket fence machine devised by Shellaberger, to February or March, 1888. Sketches of this fence were claimed to have been made at the time; but they were not preserved. Specimens amounting in all to a thousand feet of this fence were claimed to have been made upon this modified picket fence machine in February or March, 1888, which were cut up into numerous short lengths, because the machine did defective work and the defects were cut out of the strip. None of these pieces is produced. In place of the original specimens a claimed reproduction is in evidence, of recent origin, as to which it is testified that it is like that made upon the modified picket fence machine in 1888; but it is not such as that machine could make and is such as could have been made on the Sommers machine or on any machine with split twister heads, such as the Shellabergers used at De Kalb after 1891.

The picket fence machine was from six to fourteen feet long and contained a series of solid twister-heads upon one end of a series of shafts, each containing a double crook or double crank to accommodate two spools of wire upon each shaft, and at the opposite end from the twisterheads were pinions, one upon each shaft, intergeared. When used for

making picket fence, the twister-heads, which were provided with two holes on opposite sides of the center, were supplied with wire from the spools for the strands of the fence, and across the machine, between each two strand-wires, was laid a picket, and the twister-heads revolved. Then another picket was inserted between each pair of strand-wires and again the machine set in motion, the product being wound on a drum in front of the twister heads and the shafts and twister-heads being revolved by a crank and intermediate gear-wheels, intermeshing with the pinion on one side and through these pinions communicating motion to all the other shafts and twister heads in the series. Thus it was the necessary action of the machine that adjacent twister-heads should revolve in opposite directions and alternate twister-heads in the same direction. In Shellaberger's principal case no description was furnished of the changes or attachments, as they were called, made to the picket fence machine by which wire fence of the kind in question could be made.

A vigorous attack having been made upon the contention of Shellaberger as based upon his evidence in chief, the rebuttal record was extended by additional testimony upon the construction of the machine, and it was there stated by Shellaberger and by his son that the attachment consisted in such changes as justify the finding that they amounted to a remodeling of the whole machine, substituting straight shafts for double-crank shafts, changing the boxes in which they were supported, substituting new twister-heads with slots, substituting new pinions also provided with slots, and leaving nothing unchanged but the frame, the crank, and the driving-shaft.

Looking at the machine and the question whether it was ever modified as alleged, it is apparent that the modifications, if made, were substantial and noticeable. It is claimed by Shellaberger that the machine was changed after working hours at night and then its former state restored; that all the specimens of fence were made at night or Sundays, and that it was thus set up and taken down five or six times. Then having produced short pieces that were satisfactory, alternating with many defects, and it being apparent that the machine could not be developed into one that would turn out the product with commercial success, nothing further was done until, as stated, in the latter half of the year 1891.

It is claimed that a rod or more of this fence was put up on posts near the fence department of this company and that it remained there several days, and Milligan and Clarke, as well as the two Shellabergers, testify that they saw it thus stretched up in the spring of 1888; but at this time the Kitsleman fence was being made in some quantity in experimental pieces at these works, and the Kitsleman fence resembled this in all its lines and in other respects, except that the mesh-wires and strand wires are not intercoiled-that is, in the Kitsleman fence the mesh-wire is coiled round and round the strand-wire, which latter

remains straight. The witnesses who testify to seeing fence-strip of this kind upon these posts in 1888 were testifying five years after the event, and of course there is room for honest mistake in such a case.

The total effect of the Shellaberger record upon the alleged construc tion of this fence is, in spite of the circumstantial narrative, a sense of incredulity. Some of the circumstances in themselves contradict others. The exhibit strip, though of recent origin, introduced to establish the construction of the product of Shellaberger's early experi ments shows that all the twists between the strands and the meshwires that were made at one time-that is, all those opposite one another-were made by twisters revolving in the same direction, and so on. The product of the machine described by Shellaberger in his rebuttal testimony could not possibly have made the twists in the direction stated.

The construction of the machine as delineated in the drawing produced in the course of the rebuttal testimony is quite different from that described by Shellaberger in his testimony-in-chief. In his first narration the machine is said to be stopped by an attachment to the drum upon which the product is wound, and it would appear that the drum revolved when the twisters stood still and the twisters revolved whem the drum stood still, and yet, when the drawing is exhibited, there is no connection of parts disclosing any such motion; but, on the contrary, the twister-heads are revolved by crank-shaft and pinion geared to the train of pinions on the twister head shafts, and thus the movement first described by the witnesses is not only variant from the only testimony that can be called explicit as to the construction of this machine, but it is totally contradicted by it. But the impressive thing about this part of the Shellaberger record is that every vestige of the fence and of the machine that made it has wholly disappeared, and at the time of taking this testimony nothing remained of them, except in the recollection of five men, one a party in this case and another his son. It is not necessary to frame a theory how these witnesses may be mistaken. The recollection of none of them is exceptionally good. As a whole, their statements are wanting in probability, and when weighed against the exhibits they are in very material parts contradicted by thein.

In the absence of all the sketches, the parts of the machine, and all the numerous specimens made by it, without any serious attempt to recover them and with their loss insufficiently accounted for, it must be held that Shellaberger has fallen short in his proofs, or else that the numerons specimens, the parts of the machine, and the sketches never existed.

There is no original specimen in existence, so far as this record shows, of fence strip made by Shellaberger earlier than the trip of C. D. Shellaberger, the contestant's son, to Tremont, August 20, 1890, when he was at the farm of the Sommers, their guest, sleeping at their house,

faring at their table, and often inspecting their fence-machine with its product upon it in process of manufacture-a machine working upon a principle which is embodied in the only successful machines belonging to the Shellabergers that are described in this record sufficiently to be identified and turning out a product like that claimed to be original. with the Shellabergers.

It is considered that there is failure of proof that any fence-strip of the kind in question was made earlier than the Sommers made it, and judgment of priority is awarded them, and the decision of the Examiners-in-Chief reversed.

EX PARTE RUDD.

Decided June 21, 1894.

68 O. G., 535.

1. ART OF DRYING THE CORES OF ELECTRIC CABLES-THE CLAIM for the ProCESS-PATENTABLE.

The claim for the process examined in view of the prior state of the art and Held to be new and patentable.

2. PROCESS-THE STEPS THEREIN SEPARATELY OLD IN THE ART-NOT NECESSARILY AN AGGREGATION-COMBINATION.

Where the separate steps in the process are found separately in different patents, but taken with a different effect and in necessary relations with another set of operations, and in none of them as a complete process, these steps, when brought together, bear the same relation to one another and to the prior art that the few and simple elements of an improved machine bear to the many and complicated elements of its precursor.

3. SAME-CLAIM FOR THE APPARATUS-NOT PATENTABLE-AN AGGREGATION. The claim for the combination of an oven and an air-pump for working the process examined and found to be for an aggregation.

APPEAL from the Examiners-in-Chief.

ART OF DRYING THE CORES OF ELECTRIC CABLES.

Application of Charles H. Rudd filed April 18, 1892, No. 429,630. Messrs. Barton & Brown and Collamer & Co. for the applicant. SEYMOUR, Commissioner:

This is an appeal taken from the decision of the Examiners-in-Chief affirming the Primary Examiner's rejection of the following claims:

1. The herein-described method of removing moisture from the cores of cables provided with a protecting-sheath, which consists in heating the completed cable in an oven from which the air is not exhausted, and simultaneously maintaining a vaenum within the sheath surrounding the core of the cable, substantially as described.

2. In an apparatus for drying the cores of cables provided with an inclosingsheath, the combination, with an oven adapted to receive a reel of the completed cable, of a vacuum-pump and a connection between said pump and the end or ends of the sheath surrounding the core of said cable, whereby a vacnum may be maintained within the sheath surrounding the core of the cable, substantially as described.