
    CHRISTIE v. SEYBOLD.
    (Circuit Court of Appeals, Sixth Circuit.
    March 22, 1893.)
    No. 53.
    1. Patents bob Inventions — Xnteresrhnok—Bill in Equity to Secure Letters Patent — Estoppel.,
    The failure oí a party in an interference proceeding in the patent office to raise the question whether his opponent’s invention includes the issue declared in the interference does not, estop such party to raise that question in an equity suit, under Rev. SI. § 4915, to determine his right to a patent.
    2. Same — Bookbinder’s Press.
    I jotters patent Ño. 450,882 were issued April 21,1891, to W. H. Christie, for a bookbinder's press in which the platen could be quickly run up by hand without moving the power-driving mechanism. The patent was granted after a decision in Ouiir,tie’s favor upon an Interference with an application by Charles Seybold. in the Seybold invention the pressure was obtained by a vertical screw, and transmitted to the platen by moans oí removable pipes otJ different lengths to suit the size oí üks bundle. In the Christie invention the power was obtained by a lever and pawl operating in connection with a ratchet wheel, pinion, and rack bar. In both inventions the. pinion whs batanced by weights. The interference was declared on a claim tor a “platen detachably connected with the power-driving mechanism and provided with a counterbalancing weight,” which language was taken from Ihe Christie claim. In the Christie invention, however, the point of disconnection was between the ratchet, wheel and the lever pawl. Held, that this construction was fairly within, the language of the claim and interference, not withstanding that the point of disconnection was not immediately at the platen proper; and that there was an interference be tween ihe two inventions.
    3. Same — Priority or Invention — Reducing to Practice.
    The man who first reduces an invention to practice is prima, facie the first inventor under Act July 4, 1830, (5 Ft. p. 117,) but the man who first conceives the invent Ion may date it back to such conception if he user-duo diligence In reducing it to practice, and he must use such diligence before, as well as after, the second conception of the invention, lined v. Cutter. 1 Story, 590, followed.
    4 Same — Due Diligence — What Constitutes.
    The person who first conceived a comparatively simple improvement in power presses for bookbinding made a rough sketch of it within a few months. Three years after his first conception he had working drawings made, and six months thereafter a machine was manufactured. He excused fine delay by asserting 1liat he could neither afford to buy the necessary tools sooner nor use them in Ms small shop. His reason for not having the machine made at another shop was that he would have made no profit on machines made by others according to Ids invention. Held, that he did not use due diligence so as to entitle Mm to a patent as against one who conceived the invention later, but reduced it to practice sooner, than himself.
    6, Same — Sketch or Machine.
    A rough sketch of an invention is not such a reduction to practice auto make its author the original. inventor, within the meaning of the patent laws.
    6. Basie — Claim that Third Party was Inventor.
    Under Rev. St. § 4915, the only question the court can consider is whether the complainant is the first inventor of a patentable device. Whether respondent or a third party was the inventor o£ the device for which respondent has received a patent should not be inquired into either by the court or by the commissioner in interference proceedings between the same parties.
    
      Appeal from the Circuit Court of the United States for the District of Kentucky.
    In Equity. Bill by Charles Seybold against William EL Christie to obtain the issue to complainant' of letters patent which had been refused after a decision against Mm on an interference. A decree was entered for complainant. Respondent appeals.
    Reversed.
    Statement by TAFT, Circuit Judge:
    This was an appeal from a decree of the circuit court of the United States for the district of Kentucky, directing the commissioner of patents to issue a patent to Charles Seybold, the appellee and complainant below, for a device in a power press used in bookbinding, whereby the platen is “detachably con - nected with power-driving mechanism and provided with a balancing weight.” The hill was filed below under section 4915 of the Revised Statutes, which provides as .follows: “Whenever a patent, on application, is refused, either by the commissioner of patents, or by the supreme court of the District of Columbia upon appeal from tbe commissioner, the applicant may have remedy by bill in equity, and the court having cognizance thereof, on notice to adverse parties and other due proceedings had, may adjudge that such applicant is entitled, according to law, to receive a patent for his invention, as specified in his claim, or for any part thereof, as the facts in the case may appear; and such adjudication, if it be in favor of the right of applicant, shall authorize the commissioner to issue such patent, on the applicant filing in the patent office a copy of the adjudication and otherwise complying with the requirements of law. In all cases where there is no opposing party a copy of the bill shall be served on the commissioner, and aU the expenses of the proceedings shall be paid by tbe applicant, whether the decision is in his favor or not.”
    The appellant, Christie, who was respondent below, secured a patent, one claim of which covered the device which Seybold averred that he first invented. Seybold filed bis application June 6, 1889, and Christie, his, June 7, 1889. An interference was declared between them in tbe patent office, on the following claim: “In a power press a platen detachably connected with the power-driving mechanism and provided with a counterbalancing weight.” The commissioner decided the interference proceeding in favor of Christie, and issued a patent to him, rejecting Seybold’s application. Christie lives in Kentucky, and Seybold therefore began proceedings against him in that district
    The invention in controversy was an improvement in presses used by bookbinders for compressing the signature bundle into a solid form, about which is applied the cover to make the complete book. The platen is the upper plate of the press. As the signature bundles vary much in size, it is of advantage to move the platen up and down in the press quickly in order to give space for the insertion of the bundle under it. The mechanism used for producing a strong pressure, whether it be a screw or other means, has a slow movement. If the platen is rigidly connected with this power-pressure mechanism, it cannot he moved upward or downward to release the bundle or readjust tbe space for a different bundle with much greater rapidity than when pressure is being applied. The improvement was in so detaching the platen from the power-pressure mechanism as to allow it to move up and1 down independent of that mechanism, and, by means of counterbalancing weights, to render its movement very easy.
    Seybold’s device consisted of a top cast portion, A, and a base or bottom, B, which are connected by suitable stay rods, C, three on each side, which form a frame rack for the Support of the top plate and screw rod. The top plate was provided with the central screw-thread hole, through which the screw, D, operated. The platen, H, was suspended between the stay rods, O, by means of suitable chains passing over suitable pulleys secured in brackets attached to the top plate and attached at the other end to the balancing weights, which were adapted to slide up and down on the outside of the stay rods. The platen was guided by the stay rods in its movement up and down. Screw, I), was moved by a hand wheel and a lover, and the end of the screw, D, was connected with the platen by the connecting pipe, I, which served to communicate the pressure from the screw to the platen, and was merely an extension, of the screw. A namber of such connecting pipes, of different lengths, were provided to suit the size of the bundle. The pipe, I, was easily removable. By taking it out, the platen, II, might bo moved up or down freely and easily by reason of the counterbalancing weights, and its height adjusted to leave the proper space between the platen and the base.
    Christie’s patent consisted of a press frame with a platen moving up and down between the sides of the frame as guides, and having rigidly attached to its upper sido a rack bar, which, extending up through the top of the press frame, engaged above with a pinion or small cogwheel mounted upon a shaft journaled in two upright brackets fixed to the ¡.op of the press frame. To the ¡ame shaft were keyed ratchet wheels, which, by moans of pawls and a lever, were rotated, driving the pinion, forcing downward the rack bin*, and bringing the required pressure on the platen. On top of the rack bar was a cross bar, to the ends of which were attached cords passing up over pulleys journaled in upright posts supported on the top of the press frame, and carrying counterbalancing weights equal to the weight of the platen. The pawls which wore engaged with a ratchet wheel to produce a rotary motion, forcing down the platen, might be thrown out of engagement with the ratchet wheel, and then the platen might be moved up or down easily by the aid of the counterbalancing weight. In doing so, of course, the pinion and ratchet wheels turned with the movement of the rack bar, but offered no obstruction to the upward or downward movement of the platen. The facts with reference to the invention by the two parties were as follows:
    Seybold conceived of Ms invention in October, 1885, and made a rough sketch oí It, which he showed to several persons in January, 1886. He was a machinist and inventor, and engaged In mairaiacturing numbering machines, perforators, cutting machines, index cutters, pasting machines, glueing machines, wood-staining machines, graining machines, polishing machines, sandpaper machines, and general repair work. At the time of his conception ho ¡¿ays that he did not have the proper tools in Ms shop to make the machine. It would have .required a planer, a long lathe, and a, boring mill. He did, not have the requisite tools until ho moved Into ids now shop, on Webster street, in the month of March, 1839. From October, 3835, until October, 1888, ho did nothing towards reducing his machine to practice. At tho latter date ho liad full-sized drawings made, and his first machine was made in April, 1889. Ho ajipliocl for a patent June 6, 1889. Tho only reason which Seybold gave in the interference proceedings in the patent office for the delay in reducing Ms machine to practice was that he did not have the necessary tools or room in Ms shop. On the hearing below, another deposition was taken, In which he gave an additional reason. His evidence was as follows:
    “Question. Please state why you did not have the proper tools, or why you did not secure them in the early part of 1886. Answer. Because my financial condition was such that I could not possibly buy those tools.
    “Q. 4. Is there any other reason you can give? A. Yes, sir.
    “Q. 5. Please give it. A. It would have been possible for me to order the press built by some other party; but as it has been my object, to, construct iliis press “to be juit on the market, and knowing- the prices of presses built by my competitors, I found it impossible to build the press at tho competition figure if ordered to be built in outside shops.
    “Q. 6. The reason, then, that you did not have a press built shortly after you had invented the same, ivas because there would hove been no profit in it for you? Is this correct or nor? A. Yes, sir.”
    Christie claimed to have conceived of Ms invention in the summer of 1880. Ho had working drawings made and patterns ordered for the production of his press in the spring and early summer of 1838, and his press was completed about July 12th of that year. The machine was set up and put In operation in the Methodist Book Concern of Cincinnati about that date, and continued in operation until the bill herein was filed. A second machine was built in October, and put In operation in that building. He filed an application for a patent June 7, 1889.
    The court below held that Seybold was the first and true inventor of the machine, and entered a decree directing the commissioner of patents to issue a patent to him. The decree was based on the finding that while Seybold’s device disclosed, “in a power press, a platen detachably connected with the power-driving mechanism,” Christie’s device did not.
    Wood & Boyd, for appellant.
    O. M. Hill, for appellee.
    Before JACKSON and TAFT, Circuit Judges, and HAMMOND, District Judge.
   TAFT, Circuit Judge,

(after stating the facts.) The questions arising in this case, covered by the assignments in error, are two: First, does Christie’s invention or device show, “in a power press, a platen detachably connected with the power-driving mechanism and provided with a counterbalancing weight?” and, second, if it does, which one of the two, Seybold or Christie, was the first or true inventor, within the meaning of the patent laws?

It is contended by appellant that it was too late for the complainant to raise the question, in the court helow, whether Christie’s device includes “a platen detachably connected with the power-driving mechanism,” because it was not raised in the interference proceeding in the patent office. It is said he is thereby es-topped to make it. We do not'concur in this view. The interference issue is drawn up. by the patent-office examiners, and the interference is declared, before either party has access to the specifications of the other, and the claims made with respect to the issue are submitted before the specifications are disclosed. Subsequently, perhaps, the question might be raised, but we do not think that a failure to raise it in the patent office prevents its being brought to the attention of the court in a proceeding like this by independent bill.

The fact, if it be a fact, that the invention of one of the parties does not include the issue declared in the interference, is apparent on the record. In one of the two cases considered by the supreme court under this section it was held that the court of its own motion must declare that the issuable device in the interference proceeding was not patentable for want of invention, and could therefore dismiss the hill, although the question had not been raised either in the patent office or by the parties in the court below or in the supreme court. Hill v. Wooster, 132 U. S. 693, 10 Sup. Ct. Rep. 228. We do not see why the court has not the same power with reference to the present question. The fact, if it be a fact, that Seybold did not raise it in the patent office, may, of course, affect the weight of his present objection, but it has no force as an estoppel.

Coming now to the question whether the Christie device embodies that which is described by the issue framed in the interference proceedings, we find that the issue was adopted by the patent office from the language of the first claim of Christie’s patent, and the question, presented is really whether Christie’» specifications entitle him to bis first claim. In Ms specifications Christie says:

“My invention refers to an, improvement in a press especially adapted for bookbinders. It relates more especially 10 a press platen which is made iletac-habii* iron) iho power-driving mocbanism and suspended by the counterpoise weight Tlie object of my invention is to provide ready means for raising and lowering a press platen by band, without baying to manipulate (lie power-driving mechanism, iho various features oí which will be set forth in the description oí: ¡he accompanying drawings. * * * I preferably employ a rack bar and pinion driven by a ratchet lever to obtain power for compressing the platen, as it is rapidly and easily manipulated. The power is conveyed as follows: 13 representa the teeth of the rack bar, which engage with pinion, 'M, mounted upon shaft, 15, winch is journaled in ears of brackens, 1(>. * '' On iho opposite side of ihe ratchet wheels 1 provide a duplex holding pawl, 31, which engages with ihe respective ratchet wheels. This pawl is nominally held in engagement with the ratchet teeth by moan» of ihe spring, 28, which presses them up, and they are held out of engagement by" the wedge. 2!), which is operated by the lever, 30. When lever, 30, is du-^reKicd. the wedge, 29, is raised rip, and the spring, 28, presses the navi. 31, into engagement with the teeth of the ratchet wheal. When said lever is raised up, if pulls the wedge, 29, down in between the holding pawl 31, and the rear edge of ihe rack bar, 6, which prevente the engagement oí ihe holding pawl, 31, with ihe teeth of the ratchet wheels. When lever, 18. siaiuis in hs normal position (shown in figures 2 and 4) the pawls are also in disengagement with the ratchet driving wheels. The press platen, 5, is therefore free to move up and down by extraneous means, so as to bo adjusted to any desired height Sl * ° The above driving mechanism, with the shipping and unshipping connections, is ihe preferred form ot" construction, but I do not limit myself to said means, except where they are maria special features of claims herein; but the importance oí sustaining the phi ron by counterbalance weight, and having it readily doiachable from the driving mechanism, so as to be raised independent thereof, is the special feature of invention, 15 0 The principal object to be accomplished by the above-described invention Sh the ready aírangeiiieni; of the press platen by hand, without manipulating ¡he same by the power lifling and depressing mechanism, — as, for instance, in a bookbinding or other similar use, the rapid operation of the press is a very important fe?lure*, and Is accomplished by means to disengage the platen from the power-driving mechanism and suspending it by a counterpoise weight, allowing it to be readily raised or lowered, as the case may bo; and the wlil'in-riesoiibecl mechanism I believe to he the best, and is claimed herein as of my invention.”

Then follow the claims, the first of which is:

“in a power press, the platen, 5. detachably connected with the poworciriving' mechanism and counterbalanced by the weight, to hold the same in any adjusted position, substantially aa .specified.”

The court: below held that the power-driving mechanism consisted of the lever, the pawls, the ratchet wheels, the pinion, and the rack bar; and that as the ratchet wheel and pinion were fixed in their relation to the rack bar, and the rack bar was fixed to the platen, the power-driving mechanism was not detachably connected with the platen.

We think this construction too narrow. The expert for the complainant below testified that he had never heard the expression “detachably connected with,” but that in this view it must mean that all the mechanism used to transmit the pressure to the platen should be capable of being detached from the platen. The patent office took the expression from the specifications and claim of Christie, and it is only fair, therefore, in construing the meaning of the term, if ambiguous, to look into Christie’s specifications to see what, in fact, is meant by the term “detachably connected with the power-driving mechanism.” Of course Christie’s specifications cannot be used for this purpose, if by so doing we are taken out of the Seybold invention, but if the issue framed by the patent office, by a fair construction, will include a feature present in both inventions, then it is the duty of the court to lean to that construction rather than to give it a strict and narrow one which will describe something present only in one. We are very clear that the two inventions have a common feature, viz. the easy elevation and lowering of the platen, secured by a counterbalancing weight and a device for the disengagement of the platen from the power-pressure mechanism and consequent independence thereof.

The amount of power required to compress the bundle makes necessary a somewhat cumbersome and slow action in the power-pressure mechanism. The object of both inventions is to temporarily free the platen from connection with the slowly-acting mechanism while the bundle is being put in the press. A device which unships the machinery conveying the great pressure power to the platen, so as to permit a free movement of the platen unrestrained by its connection with that machinery, makes the connection between the platen and the power-driving mechanism “detachable,” within the meaning of Christie’s specifications and the issue framed in this case by the patent office. It may be true that in a certain sense the pinion and the ratchet wheels and the rack bar are part of the power-driving mechanism when in action, though our impression is that, as the power is applied first on the lever, the machinery conveying the power to tire platen beyond the lever is power-transmitting mechanism, and that the lever and pawl only may be properly called the “power-driving mechanism.” But, whichever is the correct view, it is certain that, as soon as the pawls and lever which communicate the power to the ratchet wheels are unshipped, the ratchet wheels and the pinion are free to move without opposing any obstruction whatever to the easy up and down movement of the platen. When thus detached they are certainly no part of the power-driving mechanism. The result is exactly the same as if they were removed from their connection with the rack bar, because they make no resistance to the movement of the rack bar and platen. The specifications do not liinit Christie to this one mode of applying the power, but the lever, pawl, and ratchet are described by him as the preferable mode. There are many well-known equivalents, and were at the time of this invention, of this power-driving mechanism, notably the screw described in Seybold’s invention. For these reasons we are unable to agree with the learned judge below in respect to the ground upon which he placed his decision. We are therefore brought to consider the question which, in the view he took of the case, he did not find it necessary to pass upon,— that ia, wlxo was tlie first and true inventor of tliat feature wMcli we have found to be common, to the two devices, and which, is here the subject of controversy?

The patent statutes have always required such particularity of description in the applications for a patent us !o leave no doubt that in the eye of the Jaw he is the first and true inventor who first reduces the conception of a new invention, or discovery to practical and operative form. In Bedford v. Hunt, 1 Mason, 302-304, Mr. Justice Story said:

“Tlie first inventor w!lo lias put the invention into practice, and lie only, is emitted to a patent.”

And again, on page 305, lie says:

“The intent oí the statute was to guard against defeating patents fey the Heeling up of a prior invention which, had never been reduced to practice. If it wore The mere speculation o" a philosopher or a mechanician, which had never f»»en tried by the test of experience, and never put into actual operation by hún, tlie law would not deprive a subsequent invt nlor, who had employed his labors and his ‘clients in putting it into practice, of the reward due to hin ingenuity and enterprise.”

So in Agawam Co. v. Jordan, 7 Wall. 583, Mr. Justice Clifford states the rule as follows:

“The setiled rule of law is tlmr whoever first perfects a machine is entitled to a patent, mid is the real inventor, although oiiiesr. may have previously had the Mea, and made some experiments towards putting it in practice, lie it; the inventor, and is entitled to the patent, who first brought the machine to perfection, and made it capable of useful operation.”

So in Whitely v. Swayne, 7 Wall. 685, 687, Mr. Justice Nelson said:

"He is the first inventor and entitled to the patent who, being an original ííHcoverer, has first perfected and adapted the invention to actual use.”

This is the general rule, and had no exception under the statutes in xorce down to the act of July 4, 1836, (5 St. p. 117.) The fifteenth section of that act, in specifying Ihe defenses which a defendant might set up in an action for infringement, permitted him to plead that the patentee “had surreptitiously and unjustly obtained the patent for that which was in fact invented or discovered by another who was using reasonable diligence in adapting and perfecting’ the same.” The effect of the change made by ihe act of 1836 was considered by Mr. Justice Story in the case of Reed v. Cutter, 1 Story, 590, where, referring to the words “was using reasonable diligence in adapting and perfecting his invention,” h.e said:

“These latter words were copied from the fifteenth section of the act of 1836, c. 357, and constitute a qualification of the preceding language of ihatsection; so that an inventor who has first actually perfected his invention will not be deemed to have surreptitiously or unjustly obtained a patent for that which was in fact first invent edhy another, unless the latter was at that time using reasonable diligence in adapting and perfecting the same. And this I take to be clearly the law; for he is the first inventor in the sense of the act, and entitled to a patent for his invention, who has first adapted and perfected the same to use; and until the invention is so perfected and adapted for use it is not pa 1 entable. An imperfect and incomplete invention, existing in nacre theory or in intellectual, notion, or in uncertain experiments, and not actually reduced to practice, and embodied in some distinct machinery, apparatus, manufacture, or composition of matter, is not, and indeed cannot be, patentable under our patent acts, since it is utterly impossible, under such circumstances, to comply with the fundamental requisites of those acts. In a race of diligence between two independent inventors, he who first reduces his invention to a fixed, positive, and practical form would seem to be entitled to a priority of right to a patent therefor. Woodcock v. Parker, 1 Gall. 438. The clause now under consideration seems to qualify that right by providing that in- such case he' who invents first shall have the prior right, if he is using reasonable diligence in adapting and perfecting the same, although the second inventor has, in fact, first perfected the same, and reduced the same to practice in a positive form. It thus gives full effect to the well-known maxim that he has the better right who is prior in point of time, namely, in making the discovery or invention.”

Reed v. Cutter is a leading case, and has been followed by Mr. Justice Clifford in White v. Allen, 2 Cliff. 224, 2 Fish. Pat. Cas. 440, and in later cases.

It is obvious from the foregoing that the man who first reduces an invention to practice is prima facie the first and true inventor, but that the man.who first conceives, and, in a mental sense, first invents, a machine, art, or composition of matter, may date bis patentable invention back to the time of its conception, if be connects the conception with its reduction to practice by reasonable diligence on bis part, so that they are substantially one continuous act. The burden is on the second reducer to practice to show the prior conception, and to establish the connection between that conception and bis reduction to practice by proof of due diligence. It has sometimes been held, in the decisions in the patent office, that the necessity for diligence on the part of the first conceiver does not arise until the date of the second conception; but this, we think, cannot be supported on principle. The diligence of the first reducer to practice is necessarily immaterial. It is not a race of diligence between the two inventors in the sense that the right to the patent is to be determined by comparing the diligence of the twOj because the first reducer to practice, no matter what bis diligence or want of it, is prior in right unless the first conceiver was using reasonable diligence at the time of the second conception and the first reduction to practice. The language of the statute, (section 4920,) in the use of the imperfect tense, "was using reasonable diligence,” shows the legislative intent to confer a prior right on a first conceiver in a case where, after his mental act of invention, and pending his diligent reduction to practice, another inventor enters the field and perfects the invention before his rival. The reasonable diligence of the first conceiver must be pending at the time of the second conception, and must therefore be prior to it. Reasonable diligence by the first conceiver, beginning when his rival enters the field, could only carry his invention hack to the date of the second conception, and in the race from that time the second conceiver must win because of his first reduction to practice. See Rob. Pat. §§ 384-886; Millward v. Barnes, 11 O. G. 1060. The elaborate opinion of the commissioner of patents, Mr. Mitchell, in the interference proceeding between Christie and Seybold, reported in 54 O. G. 957, cites all the authorities, and is quite convincing on this point. We fully concur therein. As Christie reduced the invention to practice nearly a year before SeyboldV, press was made, the burden is on Seybold to show that from the time of bis original conception, which antedated that of Christie, he was using reasonable diligence in adapting and perfecting his idea .to practical use. Has he sustained that burden? It is quite clear to us that he has not. The question of reasonable diligence in any case depends, of course, upon all the circumstances. A complicated invention, requiring many experiments and much study to give it practical form, would reasonably delay a reduction to practice after the first conception for a greater length of time than where the idea and the machine embodying it were of a simple character. Bradford v. Corbin, 6 O. G. 223. Then, too, the sickness of the inventor, Ms poverty, and Ms engagement in other inventions of a similar kind are all circumstances which may affect the question of reasonable diligence. Bee Webster v. Carpet Co., 5 O. G. 522; Cox v. Griggs, 1 Biss. 362, 2 Fish. Pat. Cas. 174; Munger v. Connell, 1 O. G. 491; Proctor v. Ackroyd, 6 O. G. 603; Cushman v. Parham, 9 O. G. 1108.

Tn this case, Seybold’s first conception was in October, 1885, and he did not reduce his machine to practical form until April, 1889, three years and a half later. He made a rough sketch in January, 1886, which he subsequently lost. In October, 1888, three years after his first conception, he had working drawings made, and six months later a press was manufactured. His excuse for Ms delay is that until the spring oí 1889 he could not afford to buy she necessary tools for the manufacture of the press, and, if lie had been able to do so, his shop was not large enough to permit the use of them. He does not say, however, that he had not the means to hare the press made; at some other shop, where Hie proper tools were To be had, but’, on the contrary, intimates that he might have done so, but for the fact that there would have been no profit for him to sell in achines made by others according to Ms invention, blow, we do not think this a good excuse for failing to make at least one machine, in accordance with his conception. It is as much as to say that in his view Iris new conception, when reduced to practice, would not have sufficient value and utility to bring him any return commensurate with the outlay required to reduce it to practice, and in consequence he indefinitely postponed putting it into practical form until circumstances should change. This is a temporary abandonment of the idea, (White v. Allen, 2 Cliff. 224,) and is not the due diligence which entitles him to the favor of the public, for whose benefit, primarily, the patent laws were enacted, (Wright v. Postel, 44 Fed. Rep. 352.)

It can hardly be claimed that the rough sketch made by Seybold of his proposed press in January, 1886, was a reduction to practice. It has been held in many cases that drawings, much more complete than the one here testified to, are not reductions to practice, as against a subsequent conceiver who first made an actual. operative machine. Reeves v. Bridge Co., 5 Fish. Pat. Cas. 456; Lubricator Manuf'g Co. v. Renchard, 9 Fed. Rep. 293, (opinion by Mr. Justice Matthews;) Drill Co. v. Simpson, 29 Fed. Rep. 288; Ellithorpe v. Robertson, 4 Blatchf. 307; Draper v. Mills Corp., 13 O. G. 276; Odell v. Stout, 22 Fed. Rep. 159.

Further objection to reversing the decree is made on behalf of appellee on the ground that Christie was not the true inventor of the machine for which he obtained the patent. It is said that Christian Keck, who was in Ms employ, was the real inventor. We do not see how this is a subject which can be here investigated. The question here (section 4915, Rev. St.) is only whether Seybold was the first and true inventor. It is certain that some one reduced the invention Jo practice before Seybold did, and, if that is so, Seybold is not the first and true inventor, unless he was using reasonable diligence to adapt and perfect his conception; and we have found that he was not doing this. If Christie’s patent is void because he was not the first and true inventor, and Keck was, that would not entitle Seybold to a patent. The commissioner of patents did not consider the question, and we think he acted rightly in tMs respect..

On the whole case we find, therefore, that Seybold is not the true and first inventor. The decree of the court below is reversed, with instructions to dismiss the bill at the costs of the complainant.  