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DECISIONS

OF THE

COMMISSIONER OF PATENTS

FOR

THE YEAR 1893.

WEBB v. BLICKENSDERFER.

Decided December 29, 1892.

62 O. G., 159.

PRACTICE-REHEARING-DECISION AGAINST EVIDENCE.

On a motion for rehearing of a case originally heard and determined by the Acting Commissioner, upon the ground of decision contrary to evidence, the Commissioner will not disturb the prior decision upon a showing that the testimony was closely balanced and admitted the possibility of a contrary conclusion; but it must appear that the decision was clearly against the weight of testimony. MOTION for rehearing.

TYPE-WRITING MACHINE.

Application of George B. Webb, filed December 2, 1891, No. 413,756. Application of George C. Blickensderfer, filed October 29, 1891, No. 410,231.

Mr. Henry B. Donnelly for Webb.

Messrs. Hallock & Halleck for Blickensderfer.

SIMONDS, Commissioner:

This is a motion for a rehearing in the above-entitled cause, wherein a decision was rendered by the Acting Commissioner, November 10, 1892.

The first of the alleged errors in the decision of the Acting Commissioner is this:

1. The decision of the Acting Commissioner errs in holding that the prospectus published about June 15, 1889, and introduced as an exhibit in behalf of Blickensderfer cannot fairly be held to show that Blickensderfer had conceived the idea of how to apply the adjustable stops in substantially the manner covered by the issue.

1

(a) In ruling thus improperly the Acting Commissioner unjustly ignores the fact that the subsequent acts of Blickensderfer, when considered in connection with the prospectus gives weight and effect to such prospectus and establishes by it the fact that at the date of the publication of the prospectus he had conceived of the invention in issue.

The prospectus matter referred to in this allegation is as follows:

By an adjustable stop the paper-carriage is instantly brought to the same position cach time, so that the commencement of each line is directly under the preceding one. A secondary adjustable stop is also of great service, and is especially efficient in the printing of accounts, bills, etc.

No error is found in the decision of the Acting Commissioner upon this point.

The second of the alleged errors in the decision of the Acting Commissioner is this:

2. The decision of the Acting Commissioner errs in holding: "It further appeare from the testimony that the parts of Exhibit B were fitted to a machine at the time the testimony was taken; but it does not appear that either Exhibit B or D was reduced to a form adapted to practical use within the meaning of the issue at any time prior thereto. Assuming that this Exhibit B shows that Blickensderfer had a conception of the invention in controversy, it is not clear just when this exhibit was made. He filed his application October 29, 1891," and thus limiting Blickensderfer's reduction to practice to October 29, 1891, when he filed an "allowable" application. (a) In ruling thus improperly the Acting Commissioner unjustly ignores the fact that Mr. John K. Hallock testified (Blickensderfer Record, p. 44) that he "saw the columnating device now in contest" in Washington; that he met Mr. Blickensderfer there, and that it "was about the 1st of May, 1891; *that I am not positive as to the exact day; but I am quite certain that I reached Washington on the 5th of May. I know it was the first week in May. I recognize the exhibit (Blickensderfer Exhibit B) as the same device which I there saw at that time for the first time."

* *

(b) In ruling thus improperly the Acting Commissioner ignores the testimony of George C. Blickensderfer, who testified that Exhibit B was made directly after the drawing Exhibit C was made, "within a day or two," and that the drawing was made "March 20, 1891," (Blickensderfer Record, pp. 7 and 8,) which testimony clearly proves that Exhibit B was made not later than March 22, 1891.

(c) In ruling thus improperly the Acting Commissioner ignores the testimony of Blickensderfer's witness, Hervey Smith, who testifies that he recognized the drawing Exhibit C and saw it "the last of March, 1891," and who was asked:

"Q. 9. Please again look at Exhibit B, and particularly with reference to the separate parts, of which the slotted bar with adjustable stops is one, and state whether you recognize the device there shown as one which you saw, or substantially like what you saw, Mr. Blickensderfer making, as you have stated in your last answer.-A. This is the one. I think this is the identical piece originally made, from the fact that I have seen no other one made like this.

"Q. 10. Did you understand at the time you saw Mr. Blickensderfer making that device shown in Exhibit B and the drawing shown in Exhibit C what the object and purpose of the device were?-A. I understood it fully."

All of which shows clearly that the invention in issue was known fully to Hervey Smith as early as March, 1891; that the exhibits were seen by him, and that the device "was in perfect operation" before the 1st of April, 1891, as appears from answer to X-Q. 14, Blickensderfer Record, p. 43.

(d) In ruling thus improperly, especially with reference to the date of filing an "allowable application" by Blickensderfer, the Acting Commissioner ignores the fact that the interfering application filed October 29, 1891, is a divisional application

from an application, No. 398,672, filed July 7, 1891, and on which Letters Patent No. 472,692, dated April 12, 1892, was granted, which application fully described and showed the invention in controversy.

A pertinent remark just here is this: Whatever a judicial tribunal may be willing to do in ordering or denying a rehearing on a decision made by itself, it is certainly incumbent upon that tribunal to follow the ordinary rules governing rehearings and new trials on a motion for a rehearing of a decision made by another tribunal, and this principle is thought to be fully applicable to a case where the Commissioner is asked to rehear a decision made by an Acting Commissioner.

The foregoing allegation of error relates mainly, if not wholly, to findings of fact made by the Acting Commissioner. In Roberts v. Schuyler (12 Blatchf., 444) the Court said:

"The verdict of a jury is not to be set aside merely because the court might have arrived at a different conclusion. Unless the court can see that the jury was palpably inistaken and that the weight of evidence is decidedly against their verdict, it should not be set aside.

The Acting Commissioner made this precise and definite finding of fact as to the date of conception of the matter in controversy by each of the parties:

Upon the above state of facts it is held that Webb's date of conception of the invention in controversy must be limited to March 31, 1891, and that he reduced it to practice June 20, 1891; that Blickensderfer's date of invention must also be limited to March 31, 1891, and that he reduced it to practice by the filing of an allowable application on October 29, 1891.

That is a reasonable finding upon the facts. It is conceded that some tribunal might, upon the evidence, have given Blickensderfer a little earlier date of conception. It is a matter of the nice balancing of evidence. The weight of testimony is not clearly against the Acting Commissioner's decision, and therefore, under the rule governing rehearings and new trials, it should not be disturbed. Given the premise that both parties had the conception on the 31st day of March, 1891, the conclusion properly follows that Webb was the first to reduce to practice. There is not in the testimony of any witness brought forward by Blickensderfer a full and clear statement of anything which amounts to a reduction to practice prior to the filing of Blickensderfer's application for patent involved in interference. The Acting Commissioner could not consider Blickensderfer's application filed July 7, 1891, for the good reason that it was not in evidence.

The third of the alleged errors in the decision of the Acting Commissioner is this:

3. The decision of the Acting Commissioner errs in holding that "Webb shows that he conceived the invention in controversy as early as March, 1891, at which time he disclosed the invention to the witness, Shepard."

(a) In ruling thus improperly the Acting Commissioner unjustly ignores the fact that Webb's witness, Shepard, testifies that in March, 1891, he saw no devices for column work and never saw any till June 20, 1891, the only knowledge he had being

derived from a conversation, and that the devices which he did see in June, 1891, were different from those alleged to have been described to him by Webb in March previous, and thus giving greater weight to doubtful testimony in behalf of Webb than to the more satisfactory testimony in behalf of Blickensderfer.

It is not found that the decision of the Acting Commissioner is clearly against the weight of evidence, and therefore his finding upon this point is not open to disturbance.

The fourth of the alleged errors in the decision of the Acting Commissioner is this:

4. The decision of the Acting Commissioner errs in holding that Webb was the first to reduce the invention to practice and on June 20, 1891.

(a) In ruling thus the Acting Commissioner unjustly ignores the fact as proven by Blickensderfer's witness, J. K. Hallock, that he saw the device "now in contest" as early as May, 1891, at Washington City.

Mr. Hallock's testimony thus referred to is this:

About the 1st of May, 1891, I visited Washington, and there met Mr. Blickensderfer, and then for the first time I saw the columnating device now in contest.

The issue involves the presence of "the frame of the machine," meaning thereby a type-writing machine, and it cannot be absolutely certain from what Mr. Hallock testifies that he saw the entire combination, including the type-writing machine, at this time. The more reasonable inference is that he only saw what may be specifically called the columnating device." Here again the decision of the Acting Commissioner is not clearly against the weight of evidence, and therefore cannot be disturbed.

The fifth of the alleged errors in the decision of the Acting Commissioner is this:

5. In view of the foregoing errors of fact, the decision of the Acting Commissioner errs as to the matter of law in awarding priority of invention to Webb.

The alleged errors of fact have already been considered. Given the facts as found by the Acting Commissioner, the conclusions of law follow. It is a case where there is warrant for strongly suspecting that Blickensderfer might have readily proved himself the prior inventor to the satisfaction of the Acting Commissioner, but has not done it. The motion for rehearing is denied.

PETERS v. HISEY.

Decided December 17, 1892.

62 O. G., 315.

PRACTICE EVIDENCE OF DISCLOSURE AND REDUCTION TO PRACTICE ABROAD. What an applicant has done abroad by way of disclosure or reduction to practice is not pertinent to the question as to whether he exercised reasonable diligence arising in an interference in the Oflice.

APPEAL on motion to take testimony abroad.

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