delivered the opinion of the Court:

Waid’s application is assailed on the ground that it does not disclose a machine for bringing the tucker blade in such relation to the tack nozzle as to allow the blade to enter the welt crease and engage the stitches. The tucker blade in Waid’s device, it is urged, is only a fractional blade, not intended to engage tbe shoe between the upper and the welt, as called for in the counts of the issue. Waid, in his original specification, seems to meet this objection in tbe following language: “The object of my invention is to produce a machine which will gather the surplus and loose portions of the upper and counter 'at the inner ends of a heel seat adjacent to the ends of the welt, and push them in toward the medial line of the shoe and hold them there while they are tacked. Hitherto, in making welt shoes, after the shoe came from the inseam stitcher and welt trimmer, that portion of the heel seat towards the shank of the shoe was comparatively loose. It was the custom to push the material in as well as possible, and insert and drive a tack by band. But with this method the open ends of the heel seat just adjacent to the ends of the welt were left so wide that they would spread, making a wide heel seat, and in the subsequent operation of trimming the edge of tbe ontsole, tbe cutter would run into and sever tbe stitches at the shank of the last. I have produced a machine to make the heel seats narrow adjacent to the welt. * "x‘ * I have found by actual measurement that I can make the heel seats an eighth of an inch narrower adjacent to the welt by this means. The result is that the upper and counter conforms snugly to the shank of the last and a very narrow heel seat is formed, so that the shoe is not only better shaped, but in the subsequent operations tbe stitching is not damaged by tbe sole trimmer.”

A comparison of Freeman’s specification and drawing discloses that both parties were seeking to reduce the width of the heel seat adjacent to the ends of the welt, and to secure the loose portions of the shoe at these points. From Waid’s speci*108fication it appears that bis device was intended to take up tbe loose material adjacent to tbe welt and force tbe edges of tbe upper against tbe tucker arm. It is also stated that tbe arm is adapted for engagement between tbe upper and welt in tbe welt seam. It is also contended by counsel for Freeman that there is-not sufficient vertical space in Waid’s device between the end of tbe nozzle and tbe tucker blade to admit tbe welt. Tbe drawing discloses space,-—true, not so great as shown in Freeman’s drawing, but it appears from tbe testimony that- tbe welt differs in different sized shoes. It will therefore be assumed that this contingency can be met, especially in tbe absence of an affirmative showing to tbe contrary.

Waid’s device is also assailed as inoperative in that tbe end of tbe blade does not contain a notch, and it would be inoperative if substituted for tbe blade of Freeman, since tbe tacks could only be driven, if at all, at tbe side of tbe blade where tbe upper would not be stretched to tbe extent required. This ground of inoperativeness does not appear from tbe record to have been urged in tbe lower tribunals of tbe Patent Office. It was first suggested by tbe Board of Examiners in Obief, but we are not satisfied that tbe objection has merit, since it does not clearly appear that tbe result suggested would obtain. This objection was answered in tbe opinion of tbe Commissioner as follows: “It appears that tbe Examiners in Chief are of tbe opinion, from examination of Freeman’s drawing, that there would not be enough material in front of tbe arm to receive a tack, unless tbe arm was provided with a notch, as in Freeman’s device. There is no testimony, however, to show that it is necessary or customary to trim tbe welt seam as close to tbe threads as shown in Fig. 3 of Freeman’s drawing. Not only is there no testimony upon which this bolding of tbe Examiners in Chief is based, but tbe testimony on behalf of Waid, as indicated above, shows that tbe machine equipped with an arm of tbe character illustrated in bis drawing has been continuously in use in tbe Eh*ip p en do rf-D ittm an factory since December of 1906, and that in tbe operation of tbe device tbe arm engages tbe welt seam and forces tbe upper from tbe last, where it is *109secured by a tack driven by the tacker. As heretofore stated, the notch in the blade does not form an element of the issue. Freeman’s specification merely states that his blade is preferably provided with a notch, and Freeman himself does not appear to have urged this ground of inoperativeness.” We are therefore of opinion that Waid is entitled to make the claims of the issue.

Coming to the second question, we have examined the record carefully, and are in accord with the holding of the Commissioner that Waid was the originator of the invention, and is entitled to the award of priority. A full review of the evidence on this point appears in the opinion of the Commissioner, and, inasmuch as we are in agreement with both his statement of fact and his conclusions, no good reason suggests itself for a restatement here.

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