Counsel further made specific objection to particular portions of the testimony. In support of their position as to the propriety of taking testimony with respect to the allegation that appellee could not make the count, counsel for appellants cited the cases of Gordon v. Wentworth, 1907 C.D. 295; Robins v. Wettlaufer, 23 C.C.P.A., Patents, 952, 81 F.2d 882; and James v. Clayton, Kerrick and Stadt, 24 C.C.P.A., Patents, 1329, 90 F.2d 337. Counsel for appellee, in their brief, cited cases where permission to take expert testimony was refused.
Third. That the record with reference to Ridderstrom's activities after conception and the long period of time existing between his alleged reduction to practice and filing his application for a patent or making use of the invention shows that appellee's claimed reduction to practice amounted to nothing more than an abandoned experiment. Fourth. That even if Ridderstrom reduced his invention to practice in the early spring of 1926, the record shows that nothing was done after said alleged reduction to practice between that time and April 24, 1928, when his application for patent was filed and that in the meantime the appellant had completed his invention; that there was as much a withholding of the invention from public use or a concealment of the same on Ridderstrom's part as there was in the case of Gordon v. Wentworth, 31 App. D.C. 150, and that under said Gordon v. Wentworth, and Mason v. Hepburn, 13 App. D.C. 86, the appellee is estopped from claiming the invention in issue; that the element of "stimulation" or being "spurred into activity" is present in this case since it will be presumed, under the facts of record, that Ridderstrom had knowledge of Osgood's activities, citing Whitney v. Brewer, 1912 C.D. 127. Before the Board, appellant further contended that the decision of the Examiner of Interferences should be reversed on account of estoppel, which appellant said grew out of Ridderstrom's failure to take certain action in some interference with reference to certain claims in an earlier Osgood patent.