delivered the opinion of the Court:

Appellant contends that the counts of the interference are not patentable to either party in view of the prior art. The question before us is one of priority, and not of invention, and therefore this contention will not be considered. Putnam v. Wetmore, 39 App. D. C. 138.

Appellant in his preliminary statement alleged conception and disclosure in February, 1907, and reduction to practice in September, 1908. He subsequently filed a motion for leave to file an amended preliminary statement alleging reduction to practice prior to April 1, 1907. This motion was denied, with the privilege of renewing it at the final hearing, which was accordingly done, but again denied. The refusal of the Commissioner to grant this motion is assigned as error.

It was found by the tribunals below that appellant conceived and disclosed the invention in issue in the early part of 1907. It also appears that at this time he made a device, which was tested in the following manner as described in his own testimony: “This I took up to the experimental room and put a bead in and pushed it on to the tire, withdrew the ring and saw that the idea was all right, stripped the bead from the tire, and laid the ring back on a pile of abandoned parts of the Vincent machine.” True, the two other witnesses, Abler and Huston, testify as to further tests, but of their testimony the Hoard of Examiners in Chief, in their opinion, said: “Abler and Huston say that the tests were more extended than this, but such statements upon their part can only be taken to show that the testimony of these witnesses is unreliable. Gammeter would certainly be better informed than they as to the facts, and he must be presumed to have testified fully on this apparently vital subject.” The tribunals below were all agreed that this testimony was insufficient to prove such tests as were necessary to establish reduction to practice prior to appellee’s filing *568date,- since appellant admitted that the bead had not been incorporated into a completed tire.

The tribunals below were also unanimous in holding that, if appellant’s contention were correct that, because of the simple nature of the device, no further test was necessary, then the work done by appellee in 1905 and 1906 also amounted to a reduction to practice. Appellant is here with the burden of proof on him as the junior party, and also with the unanimous decisions of the tribunals of the Patent Office against him. Under such circumstances, where, as here, the question is one solely of fact, we will not disturb the findings below unless error is clearly apparent. A careful examination of the record fails to disclose that such is the case. Since appellant cannot prevail on either view of the evidence, the motion to amend his preliminary statement was properly refused.

But it is contended by appellant that neither the device upon which appellee relies for a reduction to practice, nor that disclosed in his application as originally filed, meets the requirements of the issue, since it consists of,“a ring with a substantially fiat periphery, incapable either of receiving the bead, exerting lateral pressure against it to form it or to apply it, or of sustaining a bead throughout its circumference,” while his application discloses an annular ring “which receives, forms, and applies the bead.” From this he urges that, if the counts of the interference are not limited to his construction, they are unpatentable in view of the evidence as to certain rings previously used in the Goodrich factory. However, it will be observed that the issue does not require that the ring, by lateral pressure exerted against it, shall apply the bead. Neither do we think that it is necessary to read such a limitation into the issue in order to uphold its validity. The construction to be placed upon the counts is properly stated by the Board of Examiners in Chief as follows: “In our opinion these counts are not hroad enough to cover a mere guide ring which is used to direct a bead strip into place as it is fed around the tire, nor are they broad enough to cover such a ring when used merely as a paeans of locating a previously formed bead ring upon a tire by *569springing tbe bead ring over the guide ring when the latter is in place upon the tire. The broadest of these counts characterizes the ring as a ‘bead applying form;’ and states that it is ‘adapted to hold a formed bead ring and to be placed adjacent to fabric on said core.’ We take this language to require a form on which a bead ring may be seated prior to the application of the form to the tire, and one which may be used to carry the bead ring which is seated thereon into its proper position on the tire. On the other hand, none of the counts are so narrow as to exclude any bead-applying ring merely because a roller or spade is required, in connection therewith, to cause the bead to adhere to the tire. In view of the interpretation of the counts above stated, it is clear that the early use of guide rings in the Goodrich factory which Gammeter urges as a bar to the allowance of claims corresponding to the counts was not, so far as can be gathered from the record, a use of the subject-matter here in issue. It is not clear that the guide rings which were used in 1902 were adapted to receive and securely hold a bead ring before the guide ring was placed in position upon the tire.” Appellee in his application clearly states that the bead is to be placed in position on the recess in the ring, and the latter moved laterally with respect to the core until the bead is brought into immediate contact with the tire foundation, when such pressure is exerted as will cause it to adhere. This completely satisfies the requirements of the issue.

It is further contended by appellant that if the device constructed by appellee in 1905 constituted a reduction to practice, it also constitutes a public use for more than two years prior to the filing of his application, and, therefore, no valid patent can be granted. This question is not before this court. Burson v. Vogel, 29 App. D. C. 388; Norling v. Hayes, 37 App. D. C. 169.

Appellee, being the first to conceive and the first to reduce to practice, is entitled to an award of priority, and the question of his diligence becomes immaterial.

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