The opinion
*603 OPINION.
Littleton :
E. ft. Whitney agreed under a contract of employment with the petitioner that all devices perfected and patented by him during his employment should become the property of the petitioner so far as such devices related to automobiles. He perfected a device known as the “Worm Drive Axle,” for which application for patent was pending from 1909 to June 24, 1913, when the patent was issued. The device, however, had been manufactured, used and sold by the petitioner for several years prior to the issuance of the patent. At least two other automobile manufacturers made and used the device before that time.
The petitioner takes the position that the invention was perfected and the application for letters patent had, with one exception, been allowed prior to March 1, 1913, and the only thing which remained to be done was the issuance of the patent; also, that title to the patent related back to the date of the application which was prior to the basic date. The claims set forth in the application were not allowed in full until March 8, 1913, and the patent was not issued until June 24, 1913. Petitioner had no monopoly on the invention until the patent was issued and, furthermore, title by relation does not meet the requirements of the statute that the property must have been acquired before March 1, 1913, in order that the fair market price or value, as of that date, may be used as a basis for determining gain or loss on the subsequent sale. Appeal of Gity Bank Co., 1 B. T. A. 210. It is further contended that the application for the patent created a valuable property right on March 1, 1913, and that the value thereof was at least equal to or in excess of the sale price of the patent in 1918. We agree that an application for a patent is property and is subject to valuation. Individual Towel & Cabinet Service Co., 5 B. T. A. 158. The evidence submitted consisted of the testimony of engineers familiar with the petitioner’s invention. Their opinions of value were upon the hypothesis that petitioner owned a patent on March 1, 1913, and were based upon the estimated royalties from the patented article. This evidence is not sufficient to enable the Board to determine what value, if any, should be ascribed to the application for letters patent, which application was all that the petitioner owned on March 1, 1913.
Judgment will be entered for the Commissioner.