the issue, and therefore the earlier applicant had only the burden
of establishing his case by a preponderance of the evidence. La Fleur
v. Harris, 388.
29. Where it appeared that one of the parties to an interference involving
an improvement in automobile tire casings employed the other to
make a tire for him; that the employee wrote to his employer that
he would do so, but would not assume any responsibility for the
wear and stability of the work, as it was entirely experimental, and
thereupon made three casings which embodied the invention of the
issue; and that the employer then organized a company for the
manufacture of the casings,-it was held that the employer was
entitled to an award of priority, although the employee was the first
to file his application. Id.
30. A party to an interference who has the burden of overcoming a previous-
ly issued patent to his adversary must prove his case beyond a rea-
sonable doubt. Blackstone v. Wild, 392.
31. In an interference involving an improvement in labeling machines by
means of which a pasted surface of limited width was produced
around a can at the junction of the flange of the lid with the body,
which, combined with devices to apply and affix a label to the can,
caused the same to adhere to the pasted surface, whereby a prac-
tically air-tight joint was produced, it was held that a machine
constructed by one of the parties, and tested with sample cans fur-
nished by a dealer, did not constitute a reduction to practice, where
it appeared that the cans furnished were of tin and sealed with a
crimp top; that they had a loose slip cover which varied to some
extent in the closeness of its fit to the can, which looseness prevented
the application of the paste entirely around the cover; and that the
object of the pasting could not be obtained by putting the labels on
over the cap in the regular way without pasting them entirely around
the can cover; and where it also appeared that the dealer ordered a
machine of the regular type, and returned the other to have it
rebuilt to correspond with the second machine; and where there was
no evidence from the dealer as to the successful operation of the
machine. Id.
32. Where the successful party to an interference filed another application
based upon the disclosure he obtained in the first interference, and
a second interference was declared between the same parties, and it
appeared that such party had built an unsuccessful device based
upon his first application, which resulted, he claimed, in his hitting
upon the invention of the issue of the second interference; but, ac
cording to the dates relied upon by him in the second interference, he
possessed such information when he filed his first application, it was
held that he was not entitled to an award of priority in the second
interference. (Following Peirce v. Hiss, 33 App. D. C. 1.)
Ellis v.
Scott, 441.
33. Where one of the parties to an interference was in possession of a
regularly issued patent when the other party filed his application,
the burden of proof is heavily upon the other party. Luellen v.
Claussen, 444.
34. Where one of the parties to an interference reduced to practice nearly
four years and a half before the other was granted a patent, and
then filed his application, his rights are subordinated to those of
such other party, because of his deliberate concealment and sup-
pression of the invention, and the patentee is entitled to the award
of priority. (Following Mason v. Hepburn, 13 App. D. C. 86;
Matthes v. Burt, 24 App. D. C. 265; Howard v. Bowes, 31 App.
D. C. 619, and Dieckmann v. Brune, 37 App. D. C. 399.)
Id.
35. One of the parties to an interference cannot defeat an award of prior-
ity to the other party by showing that the latter derived his inven-
tion from a third party. (Following Foster v. Antisdel, 14 App.
D. C. 552, and Pope v. McKenzie, 38 App. D. C. 111, and dis-
tinguishing Lemp v. Randall, 33 App. D. C. 430.) Id.
36. Where, in an interference proceeding, the Commissioner of Patents, al-
though he might have made an award of priority, did not do so,
but rejected the claims of one of the applicants on reference to
former patents, and referred them to the Primary Examiner for
further action, and then on petition of the applicant, and to remove
a doubt entertained by the applicant as to his right to appeal to
this court, denied his claims corresponding to the counts of the
issue, it was held that no appeal would lie from the Commission-
er's decision, as it did not necessarily amount to an award of priority
in the interference, and it could not be treated as an ex parte
appeal from a decision rejecting an application for a patent, as
the claims of the applicant had not been twice rejected by the
Primary Examiner as required by sec. 4909, Rev. Stat. Comp. Stat.
1913, § 9454, as a condition precedent to an appeal. (Following
Re Fullagar, 32 App. D. C. 222, and distinguishing Moore v. United
States, 40 App. D. C. 591, and citing Westinghouse v. Duncan, 2
App. D. C. 131; Allen v. United States, 26 App. D. C. 8; Union
Distilling Co. v. Schneider, 29 App. D. C. 1; Moore v. Heany, 34
App. D. C. 31; Re Selden, 36 App. D. C. 428; Cosper v. Gold, 36
App. D. C. 302; Gold v. Gold, 34 App. D. C. 229; Moore v. United
States, 40 App. D. C. 201, and Rotter v. Hodgkinson, ante, 254.)
Mann v. Brown, 457.
37. In an interference proceeding in which the invention involved related
to a sheet handling machine for making magazines, including a
mechanism for combining with the main part or body of the maga-
zine an insert sheet or sheets, an award by the Commissioner of
priority to one of the parties on the ground that the other had no
right to make the claims of the issue was affirmed, where it appeared
that the counts of the issue originated in the other party's applica-
tion; that the latter's device included means for cutting the sheets
one at a time and superimposing the parts thereof, in which process
there is a substantial advantage, while in the former's machine the
sheets were cut two at a time, and there was no suggestion in his
application of a mechanism by which it would be possible to cut
sheets one at a time and superimpose the parts thereof. Barber v.
Seymour, 481.
38. Unanimity of decision by the Patent Office tribunals in favor of the
senior party to an interference increases the burden of the junior
party. Vincent v. Hopkins, 595.
39. Where, in an interference involving the invention of an attachment to
an adding machine designed to perform multiplication, it was claimed
by the junior party that a plate model constructed by him was a
reduction to practice, but it appeared, among other things, that the
numbers on the dial wheel of the model were upside down and
could not be conveniently read; that there was no mechanism for
bringing the registry wheel back to zero after a computation had
been made; that the most the model could do was to multiply digit
by digit; that the various hand operations which this operation
necessitated did not constitute the automatic operation contemplated
by the issue, and that the only way in which the accumulating
wheels could be cleared was by adding the necessary complementary
numbers to them; it was held that the device did not come within
the class of crude devices capable of use sufficient to demonstrate
their practical efficacy and utility, and did not constitute a reduction
to practice. (Citing Paul v. Hess, 24 App. D. C. 462, and distin-
guishing Coffee v. Guerrant, 3 App. D. C. 497.) Id.
PENALTIES. See FOOD And Drugs, 1-3.
PENALTY OF BOND. See ATTACHMENT, 1.
PHYSICIANS AND SURGEONS. See EVIDENCE, 5.
1. The testimony of a physician in behalf of defendant in an action on
an accident and disability insurance policy, held inadmissible as
PHYSICIANS AND SURGEONS-continued.
within the prohibition of sec. 1073, D. C. Code (31 Stat. at L. 1358,
chap. 854), following the same ruling, as to the same testimony,
upon a prior appeal. Mays v. New Amsterdam Casualty Co. 40 App.
D. C. 249.) New Amsterdam Casualty Co. v. Mays, 84.
2. In an action by an administratrix to recover damages for the negligent
killing of her intestate, the testimony of physicians as to what was
disclosed by an autopsy performed by them on the body of the de-
cedent is admissible, over the objection of the plaintiff, where it
appears that the physicians had not attended the decedent during
his lifetime and had never seen him. (Construing sec. 1073, D. C.
Code, 31 Stat. at L. 1358, chap. 854 prohibiting any physician or
surgeon from disclosing, without the consent of the patient or his
legal representatives, any confidential information acquired by him
in attending the patient in a professional capacity, necessary to
enable him to act in that capacity.) Carmody v. Capital Traction
3. Quare, whether the failure of the plaintiff in a personal injury case to
call the family physician as a witness regarding privileged communi-
cations creates a presumption that if the physician had been called
his testimony would have been unfavorable to the plaintiff. Car-
mody v. Capital Traction Co. 245.
PLATS AS EVIDENCE. See EVIDENCE, 6.
PLEADING. See AFFIDAVITS OF DEFENSE; CARRIERS, 4, 8; EVIDENCE, 5;
GARNISHMENT, 1, 2; JUDGMENT, 1, 2; LIBEL AND SLANDER, 1, 2;
PATENTS, 1.
1. Where, in a action to recover a balance claimed to be due the plaintiff
from the defendants on an exchange of properties, the plaintiff
claimed in her declaration that under a change of the original con-
tract of exchange, which change had been agreed upon by herself and
the defendants, the transaction was to have been consummated so
as to entitle her to the balance claimed, but her evidence showed that
the change contemplated was abandoned, as indicated by her act in
carrying out the transaction in accordance with the original contract,
the effect of which was to leave no balance due her, it was held that
the trial court erred in overruling a motion by the defendants to
direct a verdict in their favor, on the ground that there was a fatal
variance between the plaintiff's allegations and proof. H. F. Mand-
ler Co. v. Lewis, 311.
2. In complying with an order requiring the plaintiff to furnish a bill
of particulars in an action based upon a contract by the defend-
ant's testator to pay the plaintiff's intestate a specified percentage
of his recovery on a government claim, "in return for pecuniary
and other aid rendered to me," it is sufficient for the plaintiff to
show that services were rendered and money advanced which formed
a part of the consideration named in the contract, irrespective of
the value of the services and the amount of the advances, as the
contract was contingent and the parties fixed the value of the serv-
ices, including the pecuniary aid rendered, at the percentage men-
tioned. (Mr. Chief Justice SHEPARD dissenting.) Craig v. Parish,
447.
3. The plaintiff is not required to state or disclose his evidence, such as
letters and memoranda, in his bill of particulars. Id.
4. Where the defense to an action based upon a contract by the defend-
ant's testator to pay to the plaintiff's intestate a percentage of
the recovery on a government claim, in return for pecuniary and
other aid rendered, is that the services were rendered and the ad-
vances made to aid in the prosecution of the claim by the plaintiff's
intestate at a time when he was in government employ, the plaintiff
cannot be required to set out in his bill of particulars facts nega-
tiving such defense. Id.
5. The action of assumpsit is equitable in its character, furnishing a remedy
highly favored by the courts, and a liberal rule will be applied in
the matter of requiring particulars of demand, especially where
both parties to the promise sued on are dead. Id.
6. In general, a bill of particulars is sufficient if information of the nature
of the plaintiff's claim is given with sufficient certainty so that
the defendant will not be misled or deceived on the trial. Id.
7. Quare, whether defects in a bill of particulars can be urged by the
defendant after he has pleaded to the merits, or after the cause
has been remanded by the appellate court for retrial, and not for
dismissal, for failure to file an additional bill of particulars. Id.
POLICE COURT. See CRIMINAL LAW, 1; FOOD and Drugs, 1–4.
PREJUDICIAL ERROR. See APPEAL AND ERROR, 3; CRIMINAL LAW, 5,
6; DIVORCE, 3; EVIDENCE, 3, 10; LIBEL AND SLANDER, 3; OBJECTIONS
AND EXCEPTIONS, 2; QUO WARRANTO, 2, 5; TRIAL, 3.
PRESUMPTIONS. See EVIDENCE, 7; PARTY WALLS, 6; PHYSICIANS AND
SURGEONS, 3.
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