majority">Mr. Justice Van Orsdei.

delivered the opinion of th()(Pourt:

This appeal is in an interference proceeding the subject-matter of which is described by the Commissioner of Patents as follows: ‘‘The invention relates to an apparatus for producing perforated note sheets which are so perforated that when used in connection with a suitable reproducing instrument the *150composition will be produced as to tempo changes and dynamics as originally rendered by the player.”

The issue is in four counts, of which the following is illustrative :

“1. In an apparatus for producing perforated note sheets for music playing instruments, a cutter apparatus including cutters for forming in a sheet note perforations, and a separate cutter for forming in said sheet expression controlling perforations, a manually controllable player apparatus, said cutter apparatus and said player apparatus being so arranged as to operate simultaneously and co-operatively, the speed of one being variable relatively to the speed of the other, the speed of the latter being substantially uniform, means between said player apparatus and said cutter apparatus for controlling the moment and duration of operation of the cutters for forming note perforations in the sheet being perforated, and means between the player apparatus and the cutter apparatus for controlling the moment of and duration of operation of the cutter for forming the expression controlling perforations in the sheet being perforated.”

The tribunals below concur in holding that White is entitled to priority. Where this occurs, and the case, as in this instance, turns wholly upon questions of fact, the finding below will not bo disturbed, except where manifest error has been committed. White took no testimony, relying upon his filing date. The • tribunals below held that, while Rees showed that some experiments along the line of the invention had been made as early' as 1909, it was unnecessary to determine whether they amounted to a conception of the invention; since, if they did, he has lost his right by concealment and suppression, and what he did at that time amounted only to an abandoned experiment.

Upon careful consideration of the whole case, we concur in the unanimous holding of the tribunals below7.

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

Mr. Justice McCoy, of the Suureme Court of the District of Columbia, sat with the Court in the hearing and determination of this appeal, in the place of Mr. Justice Poms.

Citation profile

How this case has been treated — in progress