
    CRABILL v. TEETER.
    Patents; Interference; Diligence; Originalitt.
    1. Delay of eighteen months in filing his application, by the junior applicant in interference, whose alleged conception, disclosure, and reduction to practice antedated those of the senior applicant, is satisfactorily explained by the fact that, when an officer of the company, of which the former was an employee, apparently on its behalf, authorized the development of the invention, the junior applicant was given to understand that he would be protected, since he was justified in relying upon his employer to that extent. (Citing Shuman v. Beall, 27 App. D. C. 324.)
    2. Priority will be awarded to the junior applicant in an interference, in which the issu'e is the question of fact as to which party originated the invention, where the senior applicant’s case rests upon the stipulated testimony of his father, who hastened with him to an attorney’s office to make application for patent the day following his son’s alleged conception of the invention, and the testimony of one who, within a month after the senior applicant’s alleged discovery, severed his connection with his employer to form, in conjunction with such applicant and his father, a company for the manufacture and sale of the articles in issue, in face of the fact that the employer of such witness had already taken steps to manufacture some of the articles in issue and place them upon the market, and where, to hold that the junior applicant did not originate the invention, would be to entirely ignore the testimony of his four unimpeached and reputable witnesses.
    No. 926.
    Patent Appeal.
    Submitted November 11, 1914.
    Decided January 4, 1915.
    • Hearing on an appeal from a decision of the Commissioner of Patents in an interference proceeding reversing a decision of the board of Examiners in Chief which had affirmed the decision of the Examiner of Interference.
    
      Affirmed.
    
    The facts are stated in the opinion.
    
      Mr. Fred L. Chappell and Mr. Otis A. Earl for the appellant.
    
      Mr. Arthur E. Dowell for the appellee.
   Mr. Justice Van Orsdel

delivered the opinion of the Court:

This appeal is from a decision of the Commissioner of Patents in an interference proceeding reversing the decision of the hoard of Examiners in Chief, which had affirmed the decision of the Examiner of Interferences, and awarding priority of invention to Ered Teeter, appellee, on the following issue:

“1. A hose clamp comprising a body and an outwardly projecting ear and a forwardly projecting joint tongne at each end of said body formed integrally of' sheet metal, said ears being formed by outward folds in said body and being perforated to receive a clamping bolt, said tongues being, diagonally opposed extensions of tbe ends of tbe body and adapted to cooperate to form a continuous bearing extending between tbe ears and from edge to edge of the clamp.
“2. In a bose clamp, a body made from a single sheet of metal having bolt boles, tbe ends of tbe blank cut to form one half of tbe width of tbe blank, each end of tbe blank bent between the boles and at each side thereof to form ears with the reduced ends lapping by each other and well under tbe body of the blank to firmly brace tbe ears and form a continuous uniform bearing entirely around a bose to which it may be applied, and a securing bolt passed through tbe ears.”

Appellant’s application was filed November 29, 1909. In his preliminary statement appellant claimed conception, disclosure, drawings, and model of date November 1, 1909, and reduction to practice November 2, 1909. Appellee’s application. was filed May 15, 1911. In bis preliminary statement, appellee claimed conception October 18, 1909, disclosure October 20, 1909, and reduction,to practice tbe following day, October 21, 1909.

Tbe question here presented is one of originality, each party claiming that he originated tbe invention, and that bis opponent derived knowledge of it from him. Tbe issue, therefore, is one wholly of fact. Tbe time between tbe dates alleged is short, and tbe testimony of the witnesses is given largely from memory at a period long after the occurrence of tbe events in issue.

It appears that at tbe time tbe invention was produced in tbe fall of 1909, appellee was employed as foreman in the shops of tbe Walker Hose Clamp Company, at Battle Creek, Michigan. Appellant bad been in tbe employ of this company as a traveling salesman, but was not in its employ at tbe date here in issue. Appellant’s father was a salesman for this company, and in October, 1909, discovered a nut and bolt clamp on tbe market, a sample of which, accompanied by a letter dated October 15, 1909, be sent to tbe company, asking its cost and efficiency as compared with tbe Walker clamp. Apjjellant claims to have disclosed the invention in issue to one Webster and other officers and employees of the Walker Hose Clamp Company during the month of November, 1909, and, in the middle of that month, to have entered into a contract with the Walker company, whereby it agreed to pay him a royalty on the clamps manufactured by it. lie denies that he derived any knowledge of the invention from appellee. As to the contract it appears that the agreement was drawn by Webster without the knowledge of any of the other officers of the Walker company, and that the company knew nothing of the existence of any such contract.

Dies for the production of the clamp claimed in issue were made at the factory of the Walker company in December, 1909, and clamps were made therefrom to fill orders in January following. Appellee insists that these dies were produced for the company by him and other workmen under orders of Webster. The record indicates that appellee believed the dies were being made for the Walker company, and that in making them he was acting for the company. Appellant contends that the dies were made for him at his order, and that he bore the expense of their manufacture. Shortly after the dies had been completed and the first clamps made, Webster left the employ of the Walker company, and, together with appellant and appellant’s father, formed a company known as the Orabill Clamp Company for the purpose of- manufacturing and selling these clamps.

Appellant’s earliest date claimed is November 1, 1909. On the following day, in company with his father, he went to Battle Creek, Michigan, and employed an attorney to prepare his application for a patent. The application was filed in the Patent Office on the 29th of the same month. Counsel for appellant make much of the delay of appellee of more than eighteen months in filing his application, and the Examiner of Interferences urges this circumstances against appellee in the following language: “Under such circumstances as have been shown to exist in the present case, and especially in view of the long delay on the part of Teeter in filing an application cover-fog the invention in issue when both he and the Walker lioso damp Company had every opportunity to learn that Crabill’s company was engaged in manufacturing the clamp in issue, the burden is imposed upon Teeter .to prove, by evidence which shall be both clear and convincing, that he made the invention prior to the time when he was ordered by Webster to make the dies. It is evident that at this time Crabill knew of the invention, for Teeter has in effect admitted this by his allegation that Crabill derived his first knowledge of the invention from him some weeks previous. Since both parties possess a knowledge of the invention at the time when work was started on the dies it is incumbent upon,Teeter to establish clearly that he made the invention prior to that time.” It is not strange that appellee delayed in asserting his claims to the invention in the Patent Office. When Webster, apparently on behalf of the Walker company, authorized the development of the invention, appellee was given to understand that he would be protected. He was justified in retying upon his employers to this extent. Shuman v. Beall, 21 App. D. C. 324.

We think that little more suspicion can be attached to the. delay of appellee in getting to the Patent Office than attaches to the precipitate haste of appellant. However that may be, it all resolves itself down to -the weight to be given the testimony of the respective parties as to the facts occurring during the latter half of October and the early days of November, 1909. If appellee conceived the invention and reduced it to practice prior to November 1, 1909, it matters not how long he delayed in getting to the Patent Office, so far as this case is concerned. The case can be disposed of by discarding the evidence of both appellant and appellee. This course will avoid much discussion as to the leading character of the questions put to appellee, which objection can be applied with equal force to the testimony of appellant. It will also avoid the discussion of the apparent discrepancy as to dates between appellee’s testimony in chief and in rebuttal, which amounted only to refreshing his memory in rebuttal front the date of the letter of the elder Crabill of October 15, 1909. On this point it may be suggested that the testimony of appellee in rebuttal, which is not in conflict with his testimony in chief, but more specific as to dates, corroborates the dates of conception and reduction to practice alleged in his preliminary statement, which liad been filed long before the evidence was given.

Eliminating, therefore, the testimony of the contending parties, which course, we think, is of advantage to appellant, we find that appellant’s case rests upon the stipulated testimony of his father, who hastened with him to the attorney’s office to make application for patent the day following appellant’s alleged conception of the invention, and the testimony of Webster, an employee of the Walker company, who, within a month after appellant’s alleged discovery, severed his connection with his employer in form, in conjunction with appellant and his father, the Crabill Clamp Company for the manufacture and sale of tbe clamps in issue. This was done by Webster in the face of the fact that the Walker company had already taken steps to manufacture some of the clamps and place diem upon the market.

On the other hand, appellee is supported by four unimpeached and, so far as the record discloses, reputable witnesses, — Walter Teeter, Burdick, Petrie, and Hall. The testimony of these witnesses is to he entirely ignored if wo are 1o hold that appellee did not conceive and reduce to practice the clamp in question prior to November 1, 1909, appellant’s earliest date. This we decline to do. On the face of this record we are convinced of the soundness of the conclusion reached by the Commissioner.

The decision of the Commissioner of Patents is affirmed, and the clerk is directed to certify these proceedings as by law required. Affirmed.  