
    BETTENDORF v. McKEEN.
    Patents; Interference; Conception; Reduction to Practice; Diligence; Priority.
    1. The senior applicant in interference, who first conceived the invention in issue and diligently reduced the same to practice, will be awarded priority, though his date of reduction to practice is later than that of the junior party.
    2. No lack of diligence which will postpone a party in interference who first conceived the invention, to another party who subsequently entered the field but first reduced to practice, will be held to exist, where materials ordered by the former for his invention before the other entered the field were delayed in delivery, and the invention was completed and tested as soon as such delivery would permit.
    Patent Appeal
    No. 890.
    Submitted January 16, 1914.
    Decided March 2, 1914.
    Hearing on an appeal from a decision of the Commissioner of Patents in an interference proceeding.
    
      Affirmed.
    
    The facts are stated in the opinion,
    
      Mr. Frank D. Thomason and Mr. Charles C. Bidkley for the appellant.
    
      Mr. William W. Dodge for the appellee.
   Mr. Justice Van Orsdel

delivered the opinion of the Cou'rt:

This is an interference proceeding involving an invention relating to an underframe for railway cars of steel construction. Quotation of the counts of the issue is unnecessary for the determination of the single question of fact.

Appellant, Joseph W. Bettendorf, alleged conception of the invention in March, 1906, and reduction to practice on Novembor 24, 1906. lie filed his application in the Patent Office March 13, 1907; It is conceded by appellant that appellee, William It. McKeen, Jr., conceived and disclosed his invention in June, 1905, and reduced it to practice on December 19, 1906. Appellee filed his application January 17, 1907.

Difference of opinion existed in the Patent Office as to appellant’s actual reduction of the invention in issue to practice. Decision of this somewhat involved question can he avoided, since appellee concededly was the first to conceive the invention, and, we think, was not lacking in diligence in reducing it to practice.

The inventors started oxxt to accoxnplish different results,— appellant to invent a steel car underfx’ame, and appellee to invent a light-weight steel box car. It appears that appellee placed an order for the materials for the constrxxction of his car as early as Janxxary or Februai’y, 1906. It was shown by several witnesses that there was delay in proctxring the materials, as parts of it xvere not kept in stock and had to he specially manxxfactxxred. Becaxxse of this delay, the actual constrxxctiou of the car was not begxui until Jxxly, 1906. Appellee had the structxxre in issue — the underframe of his car — completed in September. As late as October he was still endeavoring to seexire from the manufact/urers delayed materials for portions of the sxxperstructure of the car. In fact, he was compelled to suhstitxite other materials for some of the parts ordered. The car w7as completed in December, and subjected to a most severe test. It was shortly thereafter numbered, initialed, and put into service.

Thxxs it appears that appellee was endeavoring to secure materials for the eonstruetioxi of the car when appellant entered the field, and that he pushed the car to completion at as eai-ly a date as was possible under the circuxnstances. We agree with all the tribunals below that, in no view of tbe evidence, can appellee be charged with lack of diligence.

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