
    DE FOREST, Appellant, v. VOGT, MASSOLLE AND ENGL, Appellee.
    Patent Appeal No. 2749.
    Court of Customs and Patent Appeals.
    May 25, 1931.
    Darby & Darby, of New York City (Charles M. Thomas and Francis D. Thomas, both of Washington, D. C., and Samuel E. Darby, Jr., and Louis D. Fletcher, both of New York City, of counsel), for appellant.
    _ Kenneth S. Neal, of New York City (S. Mortimer Ward, Jr., of New York City, of counsel), for appellee.
    
      Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   HATFIELD, Associate Judge.

This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming the decision of the Ex-' aminer of Interferences awarding priority of invention to appellee.

The invention relates to a method of producing talking moving pictures, and is sufficiently defined in count 1, which reads:

“Count 1. The method of producing talking moving pictures on the same film which comprises photographing simultaneously upon separate films the picture and the sound, and photographing the sound record on an unexposed portion of the picture film.”

At the time of oral argument in this court, counsel for appellant stated that there were two methods of producing talking moving pictures on the same film, one of which did not comprise photographing simultane'ously the picture and the sound upon separate films; that the counts in issue were limited to a method comprising photographing simultaneously the picture and the sound upon separate films; that, as the evidence produced by appellant was not directed precisely to the method of photographing simultaneously the picture and the sound upon separate films, he could not conscientiously ask the court to consider appellant’s evidence as so limited; and that, under the circumstances, he would formally suggest that the decision of the Board of Appeals be affirmed.

Accordingly, it is unnecessary for the -court to give consideration to appellant’s assignment of error.

The decision is affirmed.

Affirmed.  