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VAN ORSDEL, Associate Justice. These appeals are from a decision of the Commissioner of Patents awarding priority of invention to appellee Halle in an interference arising between the applications of Halle, filed October 11, 1902, Wright, filed April 20, 1908, Barrett, filed December 13, 1909, and Wahl, filed May 23, 1911.

[1] Appellants in their preliminary statements, failed to allege a date of conception prior to Halle's filing date. In accordance with the practice of the Patent Office, appellants were notified by the Examiner of Interferences that Halle would be awarded priority on the record, unless cause was shown why such a course should not be pursued. Wahl and Barrett moved to dissolve the interference, on the ground that the machine disclosed by Halle was inoperative. The motions were denied by the Examiner, and appeal was taken to the Commissioner, where the decision of the Examiner was affirmed. The Examiner then adjudged Halle entitled to priority on the record. This procedure is approved in Ewing v. Fowler Car Co., 244 U. S. 1, 37 Sup. Ct. 494, 61 L. Ed. 955.

[2] The present appeals are based chiefly upon the alleged error of the tribunals below in holding the Halle device operative. The issue involves improvements in combined typewriting and adding machines, which is suggestive of technical mechanism. The experts of the Patent Office are unanimous in holding that Halle's machine is operative. So clearly was it held to be disclosed that a motion to take testimony on the question of operativeness was denied. On this point we have held that error must be clearly apparent to justify judicial intervention.

[3] Appellants, however, have constructed a machine following, it is claimed, the Halle disclosure. Affidavits are produced to show that the machine so constructed would not work. This sort of attack is usually looked upon with suspicion, since the test has been conducted wholly by the enemy. The necessity for the correction of minor structural defects does not necessarily establish a false inventive concept. Here we think the structural defects pointed out are subject to mechanical correction.

The decision of the Commissioner of Patents is affirmed. All costs on the writs of certiorari are taxed against the moving parties. Affirmed.

Mr. Justice HITZ, of the Supreme Court of the District of Columbia, sat in the place of Mr. Justice ROBB in the hearing and determination of this appeal.

(273 F.)

DE FERRANTI v. HARMATTA.

(Court of Appeals of District of Columbia. Submitted March 21, 1921. Decided May 2, 1921.)

No. 1412.

1. Patents 109-Applicant not entitled to make claims more than two years after issuance of patent to another, notwithstanding intervening patent.

Where claims in a patent issued in 1909 were appropriated by H., and, on interference, awarded to him, D. could not make such claims more than two years after the issuance of the patent in 1909, though within two years after the issuance of the patent to H.

2. Patents 109-Applicant charged with constructive notice of issuance of patent to another.

One having an application for a patent pending had constructive notice of the issuance of a patent to another containing claims which he subsequently attempted to make.

Appeal from a Decision of the Commissioner of Patents.

Interference proceeding between Sebastian Z. De Ferranti and Johann Harmatta. From a decision for the latter, the former appeals. Affirmed.

Melville Church, of Washington, D. C., for appellant.

Frederick P. Fish and J. L. Stackpole, both of Boston, Mass., for appellee.

VAN ORSDEL, Associate Justice. This appeal is from the decision of the Commissioner of Patents, awarding priority of invention to appellee Harmatta. The interference involves the application of De Ferranti, filed December 29, 1911, which was divisional of his earlier application of May 14, 1904, and the application of Harmatta, filed December 3, 1903, which eventuated into a patent December 3, 1912. The invention relates to what is known as "spot welding." This is accomplished by passing an electric current through the parts joined in such manner as to confine it to a small spot, thus making a correspondingly small weld.

[1, 2] It is not necessary to enter into the details of the invention, since we think the case can be disposed of by the consideration of a single point. It appears that a patent was issued to one Rietzel on July 20, 1909, in which the claims of the present issue originated. Harmatta appropriated these claims, which led to an interference, resulting in an award of priority of Harmatta. The Thompson Electric Welding Company was the assignee of both the Rietzel and Harmatta applications. After the Harmatta patent was issued on December 3, 1912, the counts of that interference were disclaimed in the Rietzel patent.

De Ferranti first made the claims in issue July 29, 1913, more than four years after the issue of the Rietzel patent. It is sharply contended that De Ferranti's delay in making the claims in interference can only be counted from the date of the Harmatta patent. But we are

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not impressed by this contention. De Ferranti filed his present application December 29, 1911, more than two years after the issue of the Rietzel patent, of which he had constructive notice. He is, therefore, clearly estopped to make claims against Rietzel. The Harmatta claims were derived from the Rietzel patent by reason of his being adjudged the prior inventor.

The limitation of two years within which claims may be taken from a patent arises from the application of a sound principle of public policy for the prevention of the undue extension of monopoly by procrastination in the assertion of adverse rights against one already in pos

session.

This situation is not different by analogy from a reissue case, where the public is in adverse possession. In both instances, the applicant has stood by and permitted others to assert rights which he now negligently seeks to monopolize for himself.

"Monopolies are inherently obnoxious, and it is solely because of ultimate benefit to the public that a conditional form of monopoly is permitted an inventor. When the element of diligence or good faith in an applicant is lacking, there is no valid reason for such a construction of the patent laws as would effect an extension of the limited monopoly granted upon prescribed conditions which include those very elements. Inasmuch as even diligence

and good faith do not entitle one to a monopoly upon a monopoly, it is not perceived why delay and the lack of good faith should do so." In re Fritts, 45 App. D. C. 211, 217.

The decision of the Commissioner of Patents is affirmed.
Affirmed.

Mr. Justice HITZ, of the Supreme Court of the District of Columbia, sat in the place of Mr. Justice ROBB in the hearing and determination of this appeal.

VALERIUS et al. v. PFOUTS.

(Court of Appeals of District of Columbia.

Submitted March 18, 1921. De

cided May 2, 1921.)
No. 1408.

Patents 113 (6)-Concurrent findings by Patent Office tribunals not re versed, unless clearly wrong.

Where the three tribunals of the Patent Office concurred in awarding priority to the same party, in interference proceedings which turned on a question of fact, the decision will be affirmed, unless clearly wrong.

Appeal from the Commissioner of Patents.

Interference proceeding between Theodore L. Valerius and another and Leroy S. Pfouts. From a decision of the Commissioner of Patents, awarding priority to Pfouts, Valerius and another appeal. Affirmed.

George E. Tew, of Washington, D. C., for appellants.

Edward R. Alexander and George B. Pitts, both of Cleveland, Ohio, for appellee.

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(273 F.)

SMYTH, Chief Justice. Valerius and Larsen appeal from a decision of the Commissioner of Patents in an interference proceeding relating to an improvement in ice cream freezers, whereby flavoring material may be admitted into the freezing cylinder at any stage in the freezing process without interfering with the introduction of the next batch of cream mixture into the feed tank. The case turned upon a question of fact, and the three tribunals of the Office concurred in awarding priority to Pfouts.

We cannot find that this ruling is clearly wrong, and hence, according to the well-established practice (Dunham v. Dyson et al., 50 App. D. C. 338, 272 Fed. 206, and cases there cited), we affirm the decision of the Commissioner of Patents. All costs on the writ of certiorari issued at the instance of Pfouts are taxed against him.

Affirmed.

Mr. Justice HITZ, of the Supreme Court of the District of Columbia, sat in the place of Mr. Justice ROBB in the hearing and determination of this appeal.

ANGLADA v. MOYER et al.

BRYANT v. CARROLL et al.

(Court of Appeals of District of Columbia. Submitted March 18, 1921. Decided May 2, 1921.)

Nos. 1409, 1410.

Patents 113 (6)-Concurrent decision of Patent Office tribunals affirmed, unless palpably wrong.

Where the question involved in interference proceedings is one of fact, as to which of the three tribunals of the Patent Office concurred, the decision of the Commissioner will be affirmed, unless the record reveals palpable error.

Appeal from the Commissioner of Patents.

Interference proceedings between Joseph A. Anglada, Fredellia H. Moyer, Dallas C. Carroll, and Richard S. Bryant. From a decision of the Commissioner of Patents, awarding priority to Moyer, Anglada and Bryant separately appeal. Affirmed.

In Case No. 1409:

Arthur W. Nelson, of Chicago, Ill., for appellant.

Charles S. Grindle and James A. Watson, both of Washington, D. C., and Bert M. Kent, of Cleveland, Ohio, for appellees.

In Case No. 1410:

Bert M. Kent, of Cleveland, Ohio, for appellant.

Charles S. Grindle and James A. Watson, both of Washington, D. C., and Arthur W. Nelson, of Chicago, Ill., for appellees.

SMYTH, Chief Justice. These appeals are from a decision of the Patent Office in an interference case relating to a locking device for

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a demountable tire rim for automobiles. There are four interferants. Moyer was successful before each of the three tribunals of the Office. Anglada and Bryant appeal-Anglada against Moyer, Carroll, and Bryant; and Bryant against Carroll, Anglada, and Moyer.

The question involved is one of fact, and a careful study of the record fails to reveal palpable error on the part of the Commissioner. Therefore, following the rule announced in Valerius et al. v. Pfouts, 50 App. D. C. 394, 273 Fed. 358, this day decided, his decision in awarding priority to Moyer is affirmed.

Affirmed.

Mr. Justice HITZ, of the Supreme Court of the District of Columbia, sat in the place of Mr. Justice ROBB in the hearing and determination of this appeal.

JENKS et al. v. GEIGER.

(Court of Appeals of District of Columbia. Submitted March 23, 1921. Decided May 2, 1921.)

No. 1420.

1. Patents 90 (5)—Applicant first to conceive and first to file entitled to priority, in absence of actual reduction to practice.

The party to an interference proceeding, who was first to conceive and first to constructively reduce to practice by filing his application, is entitled to priority, where neither party claims actual reduction to practice.

2. Patents 90 (6) —Original sketch of senior party to interference held to disclose invention in issue.

In an interference proceeding involving a side bearing for railway cars, where neither party claimed actual reduction to practice, the senior party's original sketch held to disclose the invention in issue, so as to entitle him to priority, where he was the first to conceive.

Appeal from a Decision of the Commissioner of Patents.

Interference proceeding between Charles D. Jenks and another and William A. Geiger. From a decision awarding priority to Geiger, the other parties appeal. Affirmed.

C. E. Mehlhope, of Chicago, Ill., for appellants.

George I. Haight and Joseph Harris, both of Chicago, Ill., and H. N. Low, of Washington, D. C., for appellee.

VAN ORSDEL, Associate Justice. Appellants, Jenks and Perry, appeal from the decision of the Commissioner of Patents awarding priority of invention to appellee, Geiger, for an invention defined in the following count:

"In a side bearing for railway cars, the combination with a bolster and having an upper bearing surface, of a roller-carrying member having a bottom wall and vertically extending spaced side walls, said bottom wall being provided on its under side with a bearing surface co-operable with said first named bearing surface, an antifriction roller carried by said member and

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