(dissenting).
An anomalous situation is obviously presented where, as here, the Board of Examiners in Chief specifically found prior conception and reduction to practice by the junior applicant in an interference proceeding, but that the doctrine of Mason v. Hepburn applied and “priority” must therefore be awarded and a patent granted to the senior appli*450cant, and this holding is broadly affirmed by the commissioner. In such a case it would seem that the interference should have been dissolved and both applications rejected. Perhaps this question can be presented to the reviewing courts only after appeal to the Court of Customs and Patent Appeals from the decision of the commissioner, or by proof, in a subsequent suit for infringement, which meets all-the requirements of certainty and conviction; but I also feel that lack of exactly analogous precedent should not prevent extension to the present ease of the broad underlying principles of the decision in Morgan v. Daniels.
Were I not convinced in my own mind that the grant of a patent to Kries was wholly inconsistent with the finding of fact of prior conception and reduction to practice by Wadsworth, I should feel less justified in submitting this dissent; but that very issue of fact seems to me determinative of a contrary result in the Patent Office, and it is the administrative, decisions of fact, and not the ultimate and erroneous conclusions of law, with which we are here concerned, and with which the Supreme Court was concerned in Morgan v. Daniels. Compare also Johnson v. Towsley, 13 Wall. 72, 86, 20 L. Ed. 485.
Nor can the result in the Patent Office be passed off as implying the necessary conclusion that Wadsworth’s action amounted only to an abandoned experiment. The board did not so find. The commissioner in no way intimated an opinion contrary to that of the board. Conceding that Wadsworth reduced his conception to practice in the full sense of the word, and that the board so found as a fact, the ultimate grant of a patent could be awarded Kries only upon a reversal of such finding, at least presumptively correct under Morgan v. Daniels, and the commissioner con-cededly did not reverse. The ease is not one for the strict application of principles of res adjudicata in courts of law, but one of the presumption of regularity, correctness, and finality of fact decisions by administrative officers or tribunals.
But if the case properly turns only upon the weight and eonelusiveness of the evidence of prior invention, I am of the opinion that the Kries patent is invalid. The entire record of the interference proceeding was stipulated into the present record. It is sufficient to here say that I was convinced by it and concur in the fact finding of the Board of Examiners in Chief. Certainly the evidence does not carry thorough conviction to the contrary, and 'this, I think, is sufficient under application to the doctrine of Morgan v. Daniels, even though that case is not precisely parallel in its facts. The lack of commercial use of the invention by Wadsworth is, of course, immaterial under Corona Co. v. Dovan Corp., 276 U. S. 358, 384, 48 S. Ct. 380, 72 L. Ed. 610. No test was necessary; the operativeness, as an anticipation, of the device actually made seems to me apparent.