but because of a failure to pay the final fee, a patent was not issued to them. Appellant's application describing the invention in issue, was filed December 1, 1905. He was notified by the Commissioner of Patents on May 11, 1906, that his application had been allowed. The final fee was paid May 29, 1906, and patent was issued to him bearing date of June 19, 1906, which was the same day upon which the appellees were notified of the allowance of their application. On February 27, 1907, appellees amended their application, and inserted therein the identical claim upon which the patent to appellant had issued. This was done upon the suggestion of the Primary Examiner on the application of appellees November 27, 1906, and approved by the Commissioner December 15th following. It will be observed that appellees' application never became forfeited. The application was allowed June 19, 1906, and they had six months thereafter within which to pay the final fee. (U. S. Rev. Stats., 4897.) Before the expiration of the six months, on December 15, 1906, they were permitted by the Commissioner to amend their application as allowed by inserting the claim here in issue, which was the claim upon which appellant's patent was granted. The officials of the Patent Office have held that the claim in issue can be properly read onto the invention described in the original specification and drawing. If this be true, it would relate back to the date of conception and reduction to practice established for the invention covered thereby. Without entering into a discussion of the inventions claimed by appellant and appellees as shown in their drawings, we are inclined, with some hesitancy, to agree with the Board of Examinersin-Chief that appellees' drawings show a substantial enlargement of the groove below the mouth or opening, which would permit the resilient tube to expand and hold the wire in place. This, however, in our view of the case, as here presented, is of little importance. In the state of this record, it is too late on appeal to test this question. No motion was made by appellant in the Patent Office to dissolve the interference. Hence, the question of allowing the amendment and of error in granting the interference, is not properly before us for review. This court in Cutler v. Leonard, (C. D., 1908, 483; 31 App. D. C., 297,) considering the right of a party in the renewal of a forfeited application to embrace claims contained in a patent already issued, where it was claimed that the new claims improperly enlarged his original application, said: It is now contended by counsel for Cutler in several differently-worded assignments of error that neither Leonard's original application nor his divisional application discloses the invention in issue, and that, therefore, he has improperly enlarged his said applications. In view of the position of Cutler before the Patent Office tribunals, and in view of Rule 122 of the Patent Office Rules, we do not deem it necessary to give these assignments of error more than passing notice, Manifestly it was incumbent upon Cutler to raise this question before the Primary Examiner, whose skill in the particular art peculiarly qualified him to consider it. The claims being of highly technical nature, we cannot permit Cutler to try his case backward by raising this question at this stage of the proceedings. It may be noted, in passing, that the renewed Leonard application contains exactly the same drawings and disclosure as his original application. We must consider then the claim in issue as properly relating back to the filing of the original specification, and that date as the date of reduction to practice by appellees of the invention in issue. This narrows the investigation to the question of priority, conception, and reduction to practice. The tribunals of the Patent Office found on both points in favor of appellees. We have examined the record, and find no reason to disagree with that conclusion. We think the evidence fairly discloses a conception of the invention described in the drawing and specification in 1902, which is prior to the date of conception claimed by appellant. Appellees must be accorded their filing date as a date of constructive reduction to practice of the invention then described, which is also prior to the date claimed by appellant. Being therefore obliged, as a matter of practice, to accord appellees the same dates for the amendment, priority was properly awarded to them. It is insisted by counsel for appellant that, inasmuch as the Patent Office recognized the right of both appellant and appellees to patents for their respective inventions, as set forth in their allowed claims, and that, since each elected to take a patent so awarded, the rights of each became vested, and appellees cannot thereafter come into the Patent Office and amend their original application so as to include the invention of appellant and have it relate back to and become a part of the original claims. It is further contended that the action of the Commissioner in allowing the amendment and the placing of the parties in interference, was such an infringement of the vested .rights of appellant under his patent, as to render the acts of the Commissioner null and void. The unfortunate feature of this contention is that appellees had not accepted, and never did accept the patent allowed on their application. Before that application became forfeited, and while it was still pending in the same form that it was in when copending with the application of appellant, appellees procured leave to make the amendment. The propriety of granting it, as heretofore stated, is not involved in this inquiry. It is well settled that, if an application as amended embodies anything new that was not in the application as originally filed, or any material difference to, or variance from, the original, it cannot be sustained and made to relate back to the original application. The law does not permit such an enlargement of the original specifications as will interfere with the right of inventors who have entered the field in the meantime. As said by the Supreme Court in Chicago & North Western R. R. Co. v. Sayles, (C. D., 1879, 349; 15 O. G., 243; 97 U. S., 554:) Courts should regard with jealousy and disfavor any attempts to enlarge the scope of an application since filed, or of a patent once granted, the effect of which would be to enable the patentee to appropriate other inventions made prior to such alteration, or to appropriate that which has in the mean time gone into public use. It may be unfortunate for appellant that the filing of a motion to dissolve the interference was overlooked in the Patent Office, but no reason is apparent for permitting him to litigate a matter on appeal which was not presented to the lower tribunals. The decision of the Commissioner is affirmed, and the clerk is directed to certify these proceedings, as by law required. [Court of Appeals of the District of Columbia.] SAUNDERS v. MILLER. Decided June 1, 1909. 146 O. G., 505; 33 App. D. C., 456. 1. RENEWAL APPLICATION—QUESTION OF THE ABANDONMENT OF THE INVENTION— LIMITED TO THE INVENTION CLAIMED. While in the case of a renewal application the intention of the applicant in allowing the original application to become forfeited may be inquired into for the purpose of determining the question of abandonment, such inquiry must be directed to the abandonment of the invention claimed in the original application and not to some other invention which may be described incidentally therein and subsequently brought into interference when claimed in a later application. 2. STATEMENT IN PROCESS APPLICATION THAT APPARATUS IS NOT CLAIMED NOT A DISCLAIMER NOR AN ABANDONMENT. A statement in a process application which discloses the apparatus used for carrying out such process that the apparatus formed no part of the invention is not a disclaimer nor an abandonment of the right to subsequently claim a patent for such apparatus. 3. INTERFERENCE-EVIDENCE-FAILURE TO PRODUCE ORIGINAL DEVICE. The failure of a party to an interference to produce the first device alleged to have been made by him embodying the invention Held to be immaterial where a later device made by him is produced which the testimony shows was a reproduction of the former. 4. SAME-ABANDONMENT OF INVENTION-BURDEN OF PROOF ON PARTY CHARGING. Abandonment is not to be presumed, and the burden is on the one charging it to establish it by clear and convincing proof. 5. SAME-SAME-PRESUMPTION MAY BE REBUTTED. Where the evidence raises a presumption of abandonment, it may be rebutted by showing acts assertive of the inventor's right and his intention by experiment or improvement to perfect his discovery. Mr. H. S. Mackaye and Mr. W. H. Kenyon for the appellant. VAN ORSDEL, J.: This case comes here on appeal from a decision of the Commissioner of Patents in an interference proceeding involving an apparatus for the manufacture of rubber boots and shoes. Each of the three tribunals of the Patent Office awarded priority of invention to appellee. The issue is set forth in five counts, of which the following are sufficient for the purposes of this case: 1. In a device of the character described, a mold adapted to form the heel, sole and foxing portion of a shoe from rubber or other plastic material, means for applying heat to said mold for vulcanizing its contents, means for applying pressure to said mold while vulcanizing, and means for causing resistance to the plastic material so the same will be forced into the pores of the upper. 3. In a device of the character described, a mold adapted to form the heel, sole and foxing portion of a shoe, a last over which a shoe may be formed the same being adapted to fit the mold and assist in the formation of the heel, sole and foxing therein, means for applying heat and pressure to the material, and means in said last and mold for causing resistance to the plastic material so that the same will be forced into pores of the upper. 5. In a device of the character described, a mold adapted to form the heel, sole and foxing portion of a shoe from rubber or other plastic material, means for applying heat to said mold for vulcanizing its contents, a last or form to assist in the formation of the heel, sole and foxing portion, means for applying pressure to said mold while vulcanizing, and means engaging the foxing-line to better retain the material while under pressure. It will be observed that the invention in issue relates to apparatus for the manufacture of rubber footwear. It is described by the Examiner of Interferences as follows: It is an improvement the novelty of which principally lies in the manner of forming certain portions of the last and the mold in such a way that when they are forced together the plastic material inclosed between the last and the mold is pressed along the foxing-line, thereby enabling the foxing to be securely fastened to the upper part of the shoe when the whole is vulcanized. It appears that, on February 24, 1905, appellant filed in the Patent Office an application for a patent entitled "Improvement in rubber footwear and process of making same." This application described the apparatus involved in this interference, but only claimed the right to a patent for the process of making rubber footwear by use of the apparatus. In appellant's application, it was stated that the apparatus whereby my process is carried out forms no part of this invention, as any form of machine appropriate to accomplish all the steps above described may be employed. In compliance with the requirements of the Patent Office, appellant's original application was divided on June 17, 1905, by the filing of a divisional application claiming the article of manufacture-in other words, the product-claimed in his original application. The drawing in the divisional application and the description of the apparatus employed, were exact copies of the original application, and, it may be stated, fully described the invention here in issue. Two days after the filing of the divisional application, on June 19, 1905, appellee filed his application for a patent for the invention here in issue, describing a device very similar to that described in both appellant's original and divisional applications. Appellee claims a conception and disclosure of his invention in 1902, but no reduction. to practice is claimed prior to his filing date. We have examined the evidence carefully on this point, and think he has established no time to which he can relate beyond the filing date. The tribunals of the Patent Office, without passing definitely upon the evidence, accorded him this date, which is all that we feel the record will justify. There were, therefore, in June, 1905, three applications pending in the Patent Office showing the invention in issue, two of which belonged to appellant, who did not claim the invention as apparatus, the third belonging to appellee, who did claim the invention as apparatus. Inasmuch as appellee claimed the invention as apparatus, and appellant claimed it as process and product, under the rulings of the Patent Office, no opportunity was afforded for placing appellant in interference with appellee, or of otherwise notifying appellant of appellee's claim to the invention. (Myers v. Brown, C. D., 1904, 445; 112 O. G., 2093.) Appellee was granted a patent without interference on April 17, 1906. In the meantime, appellant's original application had been allowed with claims for process, and the last day allowed for the payment of the final fee was April 16, 1906. The fee was not paid, and, in consequence, appellant's original application became forfeited on April 17, 1906, the same day on which appellee's patent was issued. On September 8, 1906, appellant renewed his original application, which was subsequently allowed by the Patent Office. After the renewal of the original application, appellant, learning of appellee's patent, filed a new application January 10, 1907, in which he copied exactly the drawing and description in his original application of February 24, 1905, and in which the claims of appellee's patent, being claims for the same invention as apparatus, were copied for the purpose of interference. On request of appellant, the present interference was declared. It will, therefore, be observed that, while the original application of appellant describing fully the apparatus which is the subject of the invention here in issue, was forfeited, the renewal application was filed within the statutory period of two |