43.) Affirmed by Mr. Justice Fisher. (MS. Appeal Cases, D. C., 1869.)

An inventor who made a drawing of his invention, but took no further steps for six years, when he filed his application, cannot prevail against his competitor, who had, in the mean time, devised it and obtained a patent. (Wood v. Crowell, Commissioners' Decisions, 1869, p. 107.)

In the case of Merrill v. Atwood, a lamp burner, embodying the device in controversy, was held to be an abandoned experiment, it having been prepared to test another invention, and after being used several evenings laid aside for years, until the interference was declared. (Commissioners' Decisions, 1869, p. 6, affirmed, MS. Appeal Cases, D. C., 1869.)

In the case of Mason ex parte, MS. Appeal Cases, D. C., 1870, the following question was submitted: "Whether the proposition in regard to laches of the applicant, John L. Mason, was intended to apply to the case of an ex parte application with the same effect as when the rights of an adverse claimant were likely to be affected by such laches?" In deciding this question, Mr. Justice Fisher says: "In reply to the second question, I have to say, that the case before me being that of adverse claimants, the proposition in regard to laches had reference and was intended to apply to such cases only, and not to the case of an ex parte application. The view which I entertain on the subject of laches is simply this: that the inventor who conceals his invention, or fails to take the steps necessary to secure his patent therefor, does so at the risk of being postponed in his claim by the coming in of a subsequent independent inventor, who is diligent in giving the world the benefit of his invention, just as he

takes the risks of losing the benefits of his invention by consenting to or allowing its public sale or use for the time fixed in the act of Congress as a bar against him. If he conceals his invention for any length of time, no matter how long, and it does not get into public use or on sale for more than two years by his consent or allowance, and it is not subsequently invented by another, who applies before him, and there is reasonable grounds to believe that he did not abandon it, I do not suppose that lapse of time per se would be cause for refusing his application for a patent."

317. CLASSES INTO WHICH CASES OF INTERFERENCE MAY BE DIVIDED. Cases of interference may be naturally divided into two leading classes. The first comprises those in which the applicants are both original and independent inventors, and the only question left for decision is, which was the first inventor? The parties, in this class of cases, may be, and usually are, widely separated; they have no connection whatever with each other. The coincidence of invention is accidental, or rather results from the fact that the new improvement is one which is demanded by the state of arts, and one which many men are seeking, at the same time, to discover or develop.

The question of priority in such cases is usually one of easy solution. It is to be determined by ascertaining which of the parties first reduced the invention to a practicable form, either by a drawing, sufficient of itself to enable an artisan to make the thing invented, or by a sketch, accompanied by written description, or by model, or full-sized machine. In such cases, mere conversations, as proof of invention, however explicit in detail, should not be accepted, unless such conversations consisted of

directions to workmen to enable them to construct a machine which was actually built at the time and from such directions.

The second class of interference comprises those cases in which two men have been more or less connected in the work of invention; where the relation of partner, or employer and employee, or friend or fellow-workman, has, in some form, existed; where the invention, if it be the act of both, takes place at or about the same time; and where the real question is not so much one of priority, but of originality; where, in short, it is charged or inferred that one of the parties is claiming that which he has stolen from the other. This class may be again subdivided into three: First, where the parties are fellowtownsmen or workmen, or so situated that either might have known of the movements of the other; second, where one party is in the general employment of the other, and in the course of his work has hit upon some improvement in the tools or processes with which he works; third, where the one has been specially employed by the other to assist in developing or embodying the very invention in controversy. The cases which fall within the second class are by far the most difficult. The testimony is usually contradictory, and the parties, surrounded by a troop of partisans, clerks, or workmen, appear, and, like the seamen of opposing vessels in a collision case, swear directly in each other's faces. Each is at pains to deny every fact, material and immaterial, asserted by the other, until the judge is compelled to grope painfully through a mass of contradictory evidence to find some fact, as a basis for a decision, which has escaped the fury of the conflict. There may be some presumptions which

will render it possible to approximate to the truth. It may be said, in general, that in cases falling under the first subdivision, the evidence necessary to establish priority should be substantially the same as in cases of the first class, to wit, that he is the first inventor who has first reduced the invention to practice. As to the second and third subdivisions, it may be safely asserted that the presumption is that the workman is the inventor in the former case, and that the employer is in the latter.

When workmen are employed in large establishments, it is a natural and common mistake for employers to suppose that they are entitled to the brain-work as well as the hand-work of their employees; that if a valuable invention is made, as in some measure it is the product of their capital and of the mind of their servant, they have acquired such a title to it as to be able to consider themselves the inventors. This is especially the case when the employer has conversed with the workmen during the progress of the work, or has exhibited any interest in its successful completion. They confound the supply of material with the supply of ideas, and sometimes confidently claim to be the inventors of mechanism which they would find it difficult to describe and impossible to ope

rate.

But where a man has conceived an idea and given to it more or less development, and employs a mere workman to put it into shape, it is obvious that much confusion is likely to follow, proportioned to the mechanical skill of the workman and the lack of it in the projector. So many suggestions and hints may be furnished by the workman, that at last he ceases to remember the parentage of the underlying idea, and fancies that the whole

machine is the product of his own invention. It must be rare, however, in such cases, that the labors of the mechanic or model-maker can raise him to a higher rank than that of joint inventor with him who has the original conception, while, in the great majority of cases, the safer rule is undoubtedly that adopted by the Supreme Court of the United States in the late case of Agawam Woolen Company v. Jordan, (7 Wall., 583,) where it is said: "When a person has discovered an improved principle in a machine, manufacture, or composition of matter, and employs other persons to assist him in carrying out that principle, and they, in the course of experiments arising from that employment, make valuable discoveries ancillary to the plan and preconceived design of the employer, such suggested improvements are, in general, to be regarded as the property of the party who discovered the original improved principle, and may be embodied in his patent as a part of his invention." (Foster v. Fowle, Commissioners' Decisions, 1869, p. 35.)