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Opinion of the Court.

[43 App.

Missouri P. R. Co. v. Heidenheimer, 82 Tex. 201, 27 Am. St. Rep. 861, 17 S. W. 608. In that case a demand was made upon a railroad office for goods. Party could not tell who it was that answered him. He recognized the voice as one of the employees of the office with whom he had done business before. The question was one simply of demand of goods that had been shipped.

General Hospital Soc. v. New Haven Rendering Co. 79 Conn. 581, 583, 118 Am. St. Rep. 173, 9 Ann. Cas. 168. The action in that case was by a hospital society to recover of the rendering company for the treatment of two of its injured employees in the hospital. Manuel, who was in the plaintiff's employ and in charge of telephone calls at the hospital, and as agent of the hospital, received a telephone call purporting to be from the defendant company, asking for the despatch of an ambulance for two men who had been severely burned. The court found that the message had in fact been sent from the office of the defendant. The court said: "The fact that a person in the defendant's office, apparently in charge as its representative, toid the plaintiff to send an ambulance as testified, is a fact relevant to the issues raised by the pleadings. The defendant, however, did not object to this testimony, and it was received by the court without objection. The witness further testified that he asked who would pay for the treatment of these men, and was informed that the defendant would take care of the expense. The defendant objected to so much of the witness's testimony as stated the answer to the witness's question as to who would pay for the care of the injured men. The court overruled this objection, and the defendant excepted." The men were delivered to the hospital society, who sent their ambulance as requested, for the purpose of receiving and treating them.

2. The second assignment relates to the memorandum entered on the blotter of the police department. It does not appear that this was written by either one of the defendants, and it is a memorandum made in accordance with the duties of the office, showing the names and charges, etc., when parties are arrested.

D. C.]

Syllabus.

The record is inadmissible. Prigg v. Lansburgh, 5 App. D. C. 30, 36; National Union v. Thomas, 10 App. D. C. 277, 292; Snell v. United States, 16 App. D. C. 501, 517.

3. The last assignment of error is on the refusal of the court to give an instruction asked by defendants, stating the facts relied on to show probable cause. It is unnecessary to set out this instruction, for the court did not give the jury a charge telling them what facts, if found to be true, would constitute probable cause, but left the question entirely to the jury. When the facts relied on to constitute probable cause are in dispute, as they were in this case, their existence is for the determination of the jury, but their legal effect, if found to be true, is for the court. As the case is to be reversed it is unnecessary to elaborate the point. Spitzer v. Friedlander, 14 App. D. C. 556, 562; Slater v. Taylor, 31 App. D. C. 104, 18 L.R.A. (N.S.) 77; United Cigar Stores v. Young, 36 App. D. C. 409; Staples v. Johnson, 25 App. D. C. 155, 160; Mark v. Rich, ante, 182, present term.

For the errors pointed out, the judgment will be reversed, with costs, and the cause remanded for a new trial. Reversed.

TOLEDO SCALE COMPANY v. DUNN.

PATENTS; INTERFERENCE; DILIGENCE.

1. Where in an interference proceeding the junior party relied upon a former application as showing constructive reduction to practice, it was held that the drawings attached to that application did not clearly disclose the invention as claimed, and that his conduct after the filing of his earlier application, in negotiating the purchase of the invention of a third party, and assisting him in an interference which had been declared between the latter and the senior party, indicated that the junior party knew his earlier application did not disclose the issue.

Opinion of the Court.

[43 App.

2. Where one of the parties to an interference was the first to conceive, but the last to reduce to practice, he is not entitled to an award of priority, unless he shows that he was diligent at the time the other party entered the field.

No. 941. Patent Appeals. Submitted March 8, 1915. Decided
March 29, 1915.

HEARING on an appeal from a decision of the Commissioner of Patents in an interference proceeding.

Affirmed.

The facts are stated in the opinion.

Messrs. Rector, Hibben, Davis, & Macauley for the appellant.

Mr. V. H. Lockwood for the appellee.

Mr. Justice VAN ORSDEL delivered the opinion of the Court:

This is an appeal from the decision of the Commissioner of Patents in an interference proceeding, awarding priority of invention to appellee, Frank P. Dunn. This issue is set out in twelve counts, which are sufficiently illustrated by the following:

"1. In weighing scales, the combination of a beam fulcrumed intermediate its ends, a goods receiver carried by the beam on one side of the latter's fulcrum, a pendulum, fixed bearings from which the latter is wholly suspended, and a connection between the pendulum and the beam on the side of the latter's fulerum opposite that where the goods receiver is located, the beam preponderating in weight on the side where the pendulum is connected, normally holding the latter and the goods receiver elevated, the pendulum being adapted to descend with the applied load until equilibrium is attained."

"12. In a weighing scale, the combination with a main beam or lever, a goods receiver carried thereby to one side of its pivot or fulerum, a counterbalance member comprising a pendu

D. C.]

Opinion of the Court.

lum and its journal, a positively operating connection attached to said member eccentrically with respect to its journal and applied to the beam on the side of the latter's pivot or fulcrum opposite that where the goods receiver is located, the beam on such side preponderating in weight to normally uphold the goods receiver and normally elevate the pendulum through the positive connection aforesaid, a fixed plate bearing a table of weights, and an index hand extending adjacent the same and secured to the pendulum, the pendulum being adapted to descend with the applied load until equilibrium is attained."

This interference was declared between the application of one De Vilbiss, filed October 19, 1908, and assigned to appellant company, and the application of appellee, filed September 9, 1907, for reissue of a patent granted June 11, 1907, on an application filed November 19, 1906.

Appellant relies upon two applications filed by De Vilbiss, one on May 23, 1904, and the other on March 27, 1905, for constructive reduction to practice of the invention in issue. It was not seriously contended at bar that the application filed in 1905 disclosed the issue here in interference, but great reliance is placed upon the application of 1904 as disclosing the elements of the issue.

The present invention relates to scales of the pendulum type. The main beam carries a goods receiver on one side of its fulcrum, and is connected on the opposite side of the fulcrum with a pendulum which is normally elevated, the pendulum and the end of the beam carrying the goods receiver counterbalancing the other end of the beam. When a load is placed upon the goods receiver, that end of the beam will be lowered, causing the other end of the beam to rise and the pendulum connected therewith to fall in exact proportion to the amount of weight placed upon the goods receiver, the diminishing coacting influence of the pendulum causing the parts to reassume equilibrium. An indicator attached to the pendulum denotes the weight of the goods. When the pendulum is in its normal position, the indicator is at zero.

Referring to the application of 1904, the Examiner of In

Opinion of the Court.

[43 App.

terferences said: "I am of the opinion that the invention is not sufficiently disclosed in the application No. 209,396 to entitle De Vilbiss or his assignee to the benefit thereof in this controversy. This application was drawn primarily to a tare device, and there is practically no reference to the rest of the scale mechanism. It is true that the beam is shown in the drawing as a lever of the first order, and that it is attached at the inner end of a pendulum mechanism. But there is no statement or hint in the specification that the inner end of the beam was intended to be sufficiently heavy to counterbalance the scale pan and the pendulum, and there is nothing in the drawing to indicate that such was the case. In fact, the proportions of the beam are such as to clearly indicate that there was no intention of illustrating it as a weighted beam. The beam is shown in the position it would occupy when the maximum weight is on the scale pan, and yet the drawing shows no weight on the pan, and there is no statement in the specification to indicate that the beam was intended to be in the position of maximum load. Furthermore, when the drawings were filed, the numerals on the indicating scale were arranged so that the pointer indicated zero when the beam is in the position now illustrated, and while the numerals have since been changed, they now read backwards or from left to right. It is true that a drawing, if clear, will constitute a sufficient disclosure of an invention, but in view of the defects and inconsistencies in the De Vilbiss drawings, No. 209,396, it is not believed that the office is warranted in holding that they so clearly disclose the invention as to constitute a constructive reduction to practice." With this conclusion of the Examiner of Interferences we agree.

That the earlier application did not disclose the invention in issue is most strongly borne out by the subsequent conduct of De Vilbiss. De Vilbiss was in charge of the patents and inventions of appellant company. Although his application, which it is now claimed discloses the elements of this issue, was filed May 23, 1904, in the latter part of the year 1905 he became interested in a scale, also embodying the same subjectmatter, which had been invented by one Pool, and after negotia

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