missioner of Patents, awarding priority of invention to the senior applicant, the junior applicant appeals. Affirmed.

Geo. E. Waldo, of Chicago, Ill., for appellant.

H. B. Fay, of Cleveland, Ohio (Fay, Oberlin & Fay, of Cleveland, Ohio, on the brief), for appellee.

VAN ORSDEL, Associate Justice. This appeal is from the decision of the Commissioner of Patents in an interference proceeding, in which priority of invention was awarded to appellee, James.

The invention relates to a die or head for use in a machine for spirally coiling wires around an insulated electric conduit. It appears that

"James was employed by the Western Conduit & Manufacturing Company in 1910 under a contract, the terms of which provided that for certain specified amounts James was to make ‘a machine capable of producing flexible metal tubing or conduit and armored cable three-eighths inch internal diameter, at a rate of not less than three feet per minute, which will com

ply with the National Electric Code Construction Rules."

In May, 1911, James turned over the machine to the company in the form shown in the application here in interference.

Appellant, Smurr, contends that the machine James turned over was impracticable and inoperative, and that he and others were called upon to further develop it. It would thus appear that, at most, Smurr began where James left off. Hence he is compelled to pitch his own case upon the inoperativeness of James' device. We concur with all the tribunals of the Patent Office in holding that the counts of the issue clearly read upon the James machine as set forth in his application, and, since Smurr claims nothing until after James completed his device and turned it over to his employer, he is in poor position to prevail. With the completion of his machne in May, 1911, James must, at least, be accorded conception. This was followed by his application August 5, 1911, which constituted a constructive reduction to practice, since the claims of the issue were disclosed by the drawings of the application. Smurr does not claim a reduction to practice until February 1, 1912.

In this situation there is no theory upon which Smurr can prevail. Whatever he may have added to the James machine by way of combination or improvement, in the light of James' constructive reduction to practice, cannot be considered in this proceeding.

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

Patents 66-Combination of overfeed and underfeed, mechanism for locomotive fire box discloses invention.

Though both overfeed and underfeed stoking machines were known, and in one patent for overfeed machine there was provision for overfeed stoking in emergency, the combination of mechanism for simultaneous overfeeding and underfeeding discloses invention, especially when applied to locomouve fire box, where the space available for the mechanism is small, and in view of the utility of the applicant's device.

Appeal from the Commissioner of Patents.

Application by Nathan M. Lower for a patent for a locomotive stoker. From a decision of the Patent Office, rejecting two claims of the application, applicant appeals. Reversed.

See, also, 263 Fed. 478.

F. W. Winter, of Pittsburgh, Pa., for appellant.

T. A. Hostetler, of Washington, D. C., for Commissioner of Patents.

ROBB, Associate Justice. Appeal from a decision of the Patent Office, rejecting claims 25 and 27, relating to a locomotive stoker capable of simultaneously supplying fuel to a fire box through the underside of the grate and on the top of the fire. The claims read as follows:

"25. Stoker mechanism comprising in combination, a fire box, power mechanism for underfeeding fuel to said fire box, and separate power mechanism co-operating with said first-named mechanism for simultaneously feeding fuel into said fire box above the level of the fire therein."

"27. Stoker mechanism, comprising in combination, a fire box, mechanism for underfeeding fuel to said fire box, separate mechanism for simultaneously overfeeding fuel to the fire in said box, and power mechanism for actuating both of said feeding devices in timed relation with each other."

The two methods of fuel feeding were old, but the Patent Office concedes that "no patent is shown which discloses underfeed and overfeed mechanism." The nearest approach to such a device is the disclosure in the Smead patent (No. 707,364, dated August 19, 1902). That patent related particularly to furnaces for hot-water heaters or steam generators, and the drawing discloses a conduit capable of being used "in case of emergency" (specification) to conduct fuel to the top of the fire. In other words, if the underfeed system should fail for any purpose, the patentee provides an overhead emergency feed. We agree with the Patent Office that there was no conception of simultaneous feeding, nor is the device disclosed capable of being so used, within the meaning of the claims in issue. But we are not pre pared to accept the ruling of that office that appellant's conception was devoid of invention. It seems to us that, had the idea been so obvious

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as it now may appear, some one would have adopted it long before this, for the Smead patent was issued many years before appellant's application was filed. It seems reasonably clear that, by combining old elements in this novel way, a new and useful result has been achieved. Moreover, it must be kept in mind that a locomotive fire box is in a very restricted space, and that it would be by no means obvious that the combination of the issue could be successfully applied thereto. Having in mind the character of appellant's device, its apparent utility, and the fact that the underlying idea is entirely new, we follow our rule that any doubt will be resolved in favor of the applicant, and we therefore must reverse the decision. In re Eastwood, 33 App. D. C. 291; In re Harbeck, 39 App. D. C. 555.

Reversed.

MCNEIL v. MOLYNEUX.

(Court of Appeals of District of Columbia. Submitted November 16, 1920. Decided December 6, 1920.)

No. 1359.

Patents 106 (1) -Priority in invention of process for joining fabric sec tions awarded to senior applicant notwithstandng prior decision.

In an interference proceeding relating to claims for a process for joining sections of fabric, senior applicant held entitled to priority, notwithstanding a decision denying priority to him in an interference case relating to machines for carrying out the process as to claims containing an element first adopted by another.

Appeal from the Commissioner of Patents.

Interference proceeding between Chester McNeil and George E. Molyneux, relating to a process for joining sections of fabric. From a decision of the Commissioner of Patents awarding priority to Molyneux, McNeil appeals. Affirmed.

Chas. L. Sturtevant and E. G. Mason, both of Washington, D. C., for appellant.

John F. Heine, of Elizabeth, N. J., and Geo. F. Scull, of New York City (Henry J. Miller, of Elizabeth, N. J., and Gifford & Bull, of New York City, on the brief), for appellee.

ROBB, Associate Justice. This in an interference proceeding relating to a process for joining sections of fabric, and in which priority was awarded the senior party, Molyneux, by each of the three tribunals of the Patent Office. Two claims are involved, but claim 1 sufficiently illustrates the invention and is here reproduced:

"1. The process of joining fabric sections consisting in uniting the superposed edges of the fabric sections for stitching, opening the sections of fabric until the major portions lie in substantially the same plane, exerting a strain on the respective fabric sections in opposite directions away from and transversely of the line of stitching, and uniting said fabric sections while under said strain by connected parallel lines of stitches disposed respectively on opposite sides of the first line of stitching."

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(269 F.)

Appellant contends that our decision in Seymour v. Molyneux, 49 App. D. C. 219, 263 Fed. 471, is controlling here. The issue in that case related to machines for carrying out the process set forth in the present interference, and, inasmuch as all save two of the claims contained the limitation that the auxiliary feed dogs should engage the fabric "in advance of the stitch-forming mechanism," we awarded priority to Seymour as to those limited claims. However, we affirmed the decision of the Patent Office awarding priority to Molyneux as to the broader claims. The counts of the present interference are silent as to the extent of the strain that shall be exerted on the fabric sections at the moment they are united. The one limitation is that the union shall be made while the sections are under a transverse strain. We agree with the Patent Office that the Molyneux application involved in the prior interference (of which the present application is a division) discloses the issue set forth in the counts of the present interference, and since each tribunal of the Patent Office has fully discussed and satisfactorily answered every question involved here, we affirm the decision without more.

Affirmed.

BURNSTINE v. DREW.

(Court of Appeals of District of Columbia. Submitted October 7, 1920. Decided December 6, 1920.)

No. 3354.

Appeal and error 1048 (7)—Admission of statement of conclusion for impeachment held harmless.

Where no objection had been made to the question laying foundation for impeachment, and the witness had, in effect, admitted making the statement, error, if any, in admitting the testimony of the impeaching witness over the objection that the statement testified to was a conclusion, was harmless.

Appeal from the Supreme Court of the District of Columbia.

Action by Abraham Burnstine, administrator of the estate of David Burnstine, deceased, against Fred Drew. Judgment for defendant and plaintiff appeals. Affirmed.

Dan Thew Wright, of Washington, D. C. (Philip Ershler, of Washington, D. C., on the brief), for appellant.

W. C. Clephane, J. Wilmer Latimer, and Gilbert L. Hall, all of Washington, D. C., for appellee.

VAN ORSDEL, Associate Justice. Plaintiff below appeals from a judgment for defendant in a suit for damages for the alleged wrongful death of his son, who was killed by an automobile operated by defendant.

The single assignment of error relates to the admission of the following evidence, laying the foundation for the impeachment of one of plaintiff's witnesses:

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"Q. Didn't you say to him [Mr. Hall], in substance, these words: 'I thought that thing had been dropped. There is not anything in it, and I called up Mr. Drew and told him so.' A. No, sir; I do not recall that.

"Q. You do not recall telling him that in substance? A. No, sir; I do not. "Q. You do not remember anything like that? A. I do not think I called it 'the thing.'"

It will be observed that, when the question laying the foundation for the impeachment was propounded to plaintiff's witness on crossexamination, no objection was interposed. When, however, counsel for defendant attempted to prove the statement by their impeaching witness, Mr. Hall, objection was made on the ground that it called for an expression of opinion by the witness to the effect that plaintiff had not a good case.

The objection came too late. Plaintiff's witness had, in effect, admitted making the statement, and the exclusion of Hall's testimony would not have operated to exclude the admission; hence, if error was committed in the admission of Hall's confirmation, it was without prejudice.

The judgment is affirmed, with costs.
Affirmed.

PAYNE et al. v. HEARST.

(Court of Appeals of District of Columbia. Submitted November 22, 1920. Decided December 6, 1920.)

No. 3415.

Appeal and error 1107-Act authorizing sale of ships requires reversal of prior injunction restraining sale.

A decree enjoining the United States Shipping Board from selling certain German vessels taken over by the United States during the war, on the ground that the board had no power to make such sales, must be reversed, where, pending the appeal, Congress passed Merchant Marine Act June 5, 1920, which expressly authorized the board in its discretion to sell all vessels acquired during the war, and defined the manner in which the sales may be made..

Appeal from the Supreme Court of the District of Columbia.

Action by William Randolph Hearst against John Barton Payne and others, composing the United States Shipping Board. From a decree enjoining the defendants from selling certain vessels, defendants appeal. Reversed and remanded.

J. E. Laskey, U. S. Atty., of Washington, D. C., for appellants. E. S. Bailey, of Washington, D. C., for appellee.

VAN ORSDEL, Associate Justice. This appeal is from a decree of the Supreme Court of the District of Columbia, enjoining the individual appellants, composing the United States Shipping Board, and the United States Shipping Board Emergency Fleet Corporation, from selling certain former German vessels taken over by the United States during the war.

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