
    E. H. MUMFORD CO. et al. v. MUMFORD MOLDING MACH. CO.
    (Circuit Court of Appeals, Third Circuit.
    May 7, 1920.
    Rehearing Denied August 14, 1920.)
    No. 2532.
    Patents 4fe>51(l) — Patent held invalid because of prior .use.
    Where the application for a patent was not filed until April 6, 1907, proof of prior use of a machine substantially the same as that covered by the patent prior to March 16, 1905, will invalidate the patent, though invention was claimed to have been perfected late in the year 1905.
    Appeal from the District Court of the United States for the District of New Jersey; John Rellstah, Judge.
    Bill by the E. H. Mumford Company and others against the Mumford Molding Machine Company. From a decree dismissing the bill, complainants appeal.
    Affirmed.
    C. Percy Hutchinson, of Trenton, N. J. (Harvey U. Lechner and Paul Synnestvedt, both of Philadelphia, Pa., of counsel), for appellants.
    'Wm. Steed Jackson, of Philadelphia, Pa. (Thomas H. Sheridan, of Chicago, Ill., of counsel), for appellee.
    ■ Before BUFFINGTON, WOODLEY, and HAIGHT, Circuit Judges.
   PER CURIAM.

In the court below, the patent in suit (No. 932,563, issued to E. H. Mumford on August 31, 1909) was held invalid because of a prior-use by the Dunkenheimer Company, of Cincinnati, Ohio, and the appellants’ bill was accordingly dismissed. Admittedly, an apparatus or machine which was remodeled and used by the Dun-kenheimer'Company is substantially the same as that covered by the ipatent, and if it _ was uáed prior to the date of the invention of the latter' the patent is invalid. The decisive question on this branch of the case 'is therefore whether the appellee established, with the requisite degree of certainty, the fact that the Runkenheimer apparatus was used prior to the date of Mumford’s invention.

We have carefully examined and considered all of the testimony bearing on this question, and have reached the conclusion that the prior use has been established beyond what seems to us any reasonable doubt. We think it would serve no useful purpose to review and analyze the evidence. If it be assumed that the appellant has succeeded in showiug that the date of the Mum ford invention was as early as October, 1905, although the application was not filed until April 6, 1907, and that the appellee has not established that the kunkenheimer use began in the early part of 1904, as its evidence tends to prove, still we are satisfied that the Lunkcnheimer apparatus was designed and used at least prior to March 16, 1905.

Accordingly the decree of the court below must be affirmed, with costs.  