
    LOOMIS v. HAUSER.
    Patents; Interference; Reduction to Practice.
    Where, in an interference proceeding, the subject-matter of which was a ticket-holder, the invention consisted mainly in the folding of a small piece of paper, it was held that there could scarcely be any practical difference between an illustrative model and the perfected device, and that the device being so simple and its purpose so obvious the construction of one was to be regarded as a reduction to practice without actual use or test; following Mason v. Hepburn, 13 App. D. 0. 86.
    No. 193.
    Patent Appeals.
    Submitted January 17, 1902.
    Decided March 5, 1902.
    Hearing on an appeal from a decision of the Commissioner of Patents in an interference proceeding.
    
      Affirmed.
    
    The Court in its opinion stated the case as follows:
    This is an appeal from the Commissioner of Patents in a case of interference between the appellee George Hauser, who holds a patent for the invention in controversy issued to him on June 19, 1900, and the appellant Eugene O. Loomis, who filed an application on July 6, 1900, for a patent for the same invention.
    The invention in question is an improvement in holders for theater and transportation tickets, which is described in two several counts taken from the two several claims of the appellee Hauser’s patent, as follows:
    “ 1. A ticket-holder consisting of a blank having a flap at one comer thereof adapted to be folded but once over on to and pasted along merely two of its marginal edges to said blank to form an open-ended pocket and said blank being folded on itself, so as to leave the pocket-opening uncovered, to a rectangular shape corresponding to the pocket.
    
      
      “ 2. A ticket-holder consisting of a blank having a flap at one corner thereof adapted tó be folded bnt once over on to said blank and pasted thereto along merely two of its marginal edges to form an open-ended pocket, and said blank containing spaces for theater diagrams, programs, and advertising matter, and foldable to a rectangular shape corresponding to the pocket.”
    As already stated, the appellee Hauser holds a patent for the invention, which was issued to him on June 19, 1900, in pursuance of an application filed on April 23, 1900. The appellee Loomis did not file his application until July 6, 1900; and the claims of the patent to Hauser were copied into it for the purpose of procuring the declaration of interference now before us. There is contained in the record a previous application of the appellant Loomis, filed on November 21, 1898, for a patent for a somewhat similar invention, and the proceedings thereon which, on October 12, 1899, resulted in its rejection, in which action the applicant seems to have acquiesced, and to have proceeded no further. In the brief filed in this court on behalf of the appellant it is alleged that, in an amendment to the appellant’s specifications in these previous proceedings, the invention in controversy, or something very much like it, is distinctly disclosed. But in the opinions of the several tribunals of the Patent Office there seems to have been no notice taken of this alleged previous disclosure, or of the proceedings upon the appellant’s first application. Nor was it necessary perhaps to notice them, inasmuch as all the steps of invention claimed in the present case had been taken by Loomis from July to November of 1898, both inclusive.
    In his preliminary statement filed in the present interference Hauser, the appellee, alleged conception of the invention by him and a drawing illustrative of it in May of' 1897, and a disclosure of it and reduction to practice in September of 1897. The appellant Loomis, in his preliminary statement, alleged conception, disclosure and the making of a model of the invention in July of 1898, and the execution of a drawing and reduction to practice in November of 1898. After testimony taken by botb parties tending to support tbeir respective statements, tbe examiner of interferences rendered judgment of priority in favor of tbe patentee Hauser. This judgment tbe board of examiners-incbief reversed; but tbe assistant Commissioner, wbo acted in tbe place of tbe Commissioner, reversed tbe judgment of tbe board, sustained tbe primary examiner, and awarded judgment of priority of invention to Hauser. From bis decision appeal bas been taken to tbis court by tbe applicant Loomis.
    
      Mr. R. W. Bishop and Mr. ’A. G. Bishop for tbe appellant.
    
      Mr. W. A. Redmond and Mr. R. Golden Donaldson for tbe appellee.
   Mr. Justice Morris

delivered tbe opinion of tbe Court:

There seems to be no great contrariety of evidence in tbe ease; and it would appear that botb parties are in fact independent inventors, without knowledge on tbe part of either that tbe other was in tbe field. Tbe testimony on behalf of each litigant fairly tends to support bis preliminary statement as to what be did; and it shows conclusively that Hauser bad a conception of tbe invention in tbe year 1897, while tbe conception of Loomis was of tbe year 1898. All tbe tribunals of tbe Patent Office concur in bolding that tbe patentee Hauser was tbe first to conceive. They diff er only in tbe fact that tbe board of examiners bold that be was not tbe first to reduce tbe invention to practice, and that be was not in tbe exercise of due diligence when Loomis entered tbe field of invention, while tbe examiner of interferences and tbe Commissioner, upon appeal from tbe board, held that what Hauser did in 1897 was a reduction to practice, in consequence of which there was no occasion to raise or to decide tbe question of diligence as between the parties.

It is not seriously, if at all, controverted by tbe appellant in this court that the appellee was the first to conceive the invention; and we fully concur in the decisions of the Patent Office which unanimously awarded priority to him in that regard. The substantial question between the parties is, whether what the appellee did in the year 1897, before the advent of the appellant in the field of invention, was a reduction to practice.

It is shown that, in September of 1897, the appellee made, or caused to be made, a full-sized ticket-holder, embodying the construction of the device now in issue — in fact, that a couple of dozen of such ticket-holders were made about that time, and were used for one purpose or another by the appellee. And this showing is not sought to be controverted. Now, the invention is an exceedingly simple one, consisting mainly in the folding of a small piece of paper; and there can scarcely be any practical difference between what is designated as an illustrative model and the perfected device. What was said by this court in the case of Mason v. Hepburn, 13 App. D. C. 86, is entirely applicable to this invention. There it was said:

Some devices are so simple and their purpose and efficacy so obvious that the complete construction of one of a size and form intended for and capable of practical use might well be regarded as a sufficient reduction to practice without actual use or test in an effort to demonstrate their complete success or probable commercial value.”

The board of examiners-in-chief, as we think, were led into error by their construction of the ease of Lindemeyr v. Hoffman, 18 App. D. C. 1, which they regarded as determining the same precise point as is here involved. In that case a solitary cap or stopper for bottles was offered in evidence as a ,reduction to practice; but the designer of it distinctly admitted that this cap itself was not fit for practical use. Necessarily, therefore, it was not a reduction to practice. But in the case before us, it is shown that specimens of ticket-holders actually made were fit for practical use, and were in fact used.

We think that this case is governed by the ruling in the case of Mason v. Hepburn, and that there was actual reduction of the invention to practice by tbe appellee in September of 1897. And in view of this conclusion it is wholly unnecessary to consider tbe question of diligence on tbe part of either or both parties.

It may be proper to notice that tbe testimony of tbe appellant taken in rebuttal is directed to impugn tbe credibility of tbe appellee in reference to statements which be bad made implying that be bad a patent before bis patent had actually been issued. But these statements are easily explainable without impugnment of tbe appellee’s veracity. He bad made bis application for a patent, bad probably been informed that tbe application bad been allowed and tbe patent would be issued; and it was not unnatural that be should regard bis rights as thereby protected from infringement.

It follows from what we have said that tbe decision of tbe Commissioner of Patents must be affirmed; and that judgment of priority of invention must he awarded to the appellee George Hauser.

The clerk of the court will certify this opinion, and the proceedings in the case in this court, to the Commissioner ,of Patents, according to law.  