watched very closely. Now, by my process a series of casks or even all casks in one cellar are connected among themselves and with a carbonic-acid generator. Thus a supply of carbonic acid is introduced into the beer immediately after the casks are bunged, while afterward any surplus of said acid generated into the casks is let off into the free air. The brewer is thus enabled to regulate the pressure equally in all casks connected with the apparatus to any desired degree.

This is all there is in the circular by way of specification. It is true that annexed to it there is an incomplete drawing which might possibly to a skilled workman give an idea as to the real construction of the device, but tested by the definition found in the two cases above cited it seems to me to fall considerably short of the particularity required in a patent or in a publication claimed to anticipate a patent. It is stated by Dr. Frings, the expert, as a reason for omitting to describe them fully, that Meller was afraid that somebody might steal his invention. It has been frequently held that drawings alone, unaccompanied by letter-press description, will never invalidate a patent. In re Atterbury, 9 O. G., 640; Judson v. Cope, 1 Fisher, 615; Reeves v. Keystone Bridge Co., 5 Fisher, 156.

Second. It has been held generally, and perhaps universally, that business circulars which are sent only to persons engaged or supposed to be engaged in the trade are not such publications as the law contemplates in section 4886. Parsons v. Colgate, 24 O. G., 203; in re At terbury, 9 O. G., 640; Judson v. Cope, 1 Fisher, 615; Reeves v. Keystone Bridge Co., 5 Fisher, 456; Seymour v. Osborne, 11 Wall., 555.

Upon the whole I have come to the conclusion, I confess with a good deal of hesitation, that Pfaudler is the prior patentee, and that plaintiff's bill must be dismissed.

[United States Circuit Court-Southern District of New York.]

ARNOLD v. PHELPS ET AL.

Decided May 16, 1884.

29 O. G., 538.

A claim to the process of maturing and browning coffee by subjecting it in its uncured condition to the direct action of steam is not infringed by the application of heat only to the coffee in that condition, even though the heat generates steam from the moisture in the coffee. The steam cannot be omitted and the process be the same.

Mr. Edmund Wetmore for the orator.

Mr. Edward N. Dickerson for the defendants.

WHEELER, J.:

This suit rests on Reissue Patent No. 4,479, dated July 25, 1871, granted to John Ashcroft, for an improvement in processes for treating coffee, Division A. The process consists, essentially, in subjecting unripe or damaged coffee to the direct action of steam in a close compart

ment to heat and sweat it, and then to dry heat to complete the curing of it.

There are four claims. The first claim, in substance, the process of maturing and browning coffee by subjecting it to the direct action of steam; the second, the process of maturing and browning coffee by subjecting it to the sweating and expanding action of steam and the drying action of heat; the third, subjecting it both to the action of steam and heat while in sacks; and the fourth, subjecting a series of sacks to the action of sweating steam and drying-heat.

The defendants subject the coffee to the action of heat in a close compartment. The heat raises steam from the moisture of the coffee and produces a result similar to that of the process of the patent. The orator's evidence tends to show that this process, taken by itself, is the same as that of the second claim, and, in connection with the result, the same as that of the third claim of the patent. The witness giving this testimony is understood, however, to refer to these claims as measured by their own terms, which do not refer to the source of the steam. His meaning apparently is that the steam generated from the moisture of the coffee performs the office of steam applied from without; but this does not alter the patented process. The claims are made upon the invention described in the specification, and are to be construed with reference to that. The process there described begins with the application of steam from without to the coffee. These claims, therefore, must refer to steam so applied. The patented process is the application of steam and heat to the coffee in its uncured condition. The defendants' process is the application of heat only to the coffee in that condition. The steam cannot be omitted and the process be the same. Russell v. Dodge, 93 U. S., 460. Upon this construction the patent may be sustained, but the defendants are not shown to infringe. If the patent should be construed to cover the application of heat only to coffee in a close compartment, it might be void for want of novelty Let there be a decree dismissing the bill, with costs.

[Supreme Court of the United States.]

BUTTERWORTH, COMMISSIONER OF PATENTS, T. THE UNITED STATES EX REL. HOE ET AL.

Decided November 3, 1884.

29 O. G., 615.

1. Mandamus will not lie to compel a public officer to do a particular thing which his superior in authority has lawfully ordered him not to do.

2. In all matters in which the action of the Commissioner is judicial or quasi judicial the fact that no appeal is expressly given to the Secretary is conclusive that none is to be implied, and this is equally true whether or not an appeal is allowed to the courts.

3. The supervision conferred upon the Secretary by the statute does not authorize him to substitute his discretion and judgment for that of the Commissioner when by law the latter is required to exercise his own, and when that judgment, unless reversed in the special mode pointed out by judicial process, is by law the condition on which the right of the claimant is declared to depend.

4. When the Commissioner of Patents decided that the relators were entitled to a patent, he had fully exercised his judgment and discretion, and the ministerial duty that remained could not be avoided merely out of deference to the claim of the Secretary to reverse and set aside the decision; therefore a mandamus was properly directed to the Commissioner to compel him to perform his duty, to wit, to prepare the patent, to lay it before the Secretary for his signature, and to himself countersign it.

5. In such a case the remedy by bill in equity under section 4915 is not appropriate, because it applies only when the Commissioner decides to reject an application for a patent on the ground that the applicant is not on the merits entitled to it.

IN ERROR to the supreme court of the District of Columbia.

Solicitor-General Phillips and Mr. A. C. Bradley for the plaintiff in

error.

Hon. A. J. Willard for the defendant in error.

Mr. Justice MATTHEWS delivered the opinion of the court: This is a writ of error prosecuted for the purpose of reviewing and reversing the judgment of the supreme court of the District of Columbia, awarding a peremptory mandamus commanding the plaintiff in error, the Commissioner of Patents, to receive the final fee of twenty dollars tendered by the relators, and cause letters patent of the United States to R. Hoe & Co., as assignees of Gill, to be prepared and sealed, according to law, for a certain invention therein particularly described, and to be presented to the Secretary of the Interior for his signature.

The facts upon which the controversy arises are shown by the record to be as follows: On March 12, 1881, Gill, one of the relators, made application in due form to the Commissioner of Patents for letters patent for certain new and useful improvements in printing-machines, of which he claimed to be the original and first inventor. An interference was declared with an unexpired patent, No. 238,720, granted to Walter Scott, March 8, 1881. A hearing was had before the Examiner of Interferences, who decided in favor of Scott, and, on appeal to the Examiners-in-Chief, that decision was affirmed. An appeal from that decision was taken by Gill to the Commissioner of Patents, who decided that Gill was the original and first inventor of the improvements claimed, and was entitled to a patent therefor; and on June 4, 1883, adjudged that such patent should issue to the relators composing the partnership of R. Hoe & Co., as assignees of Gill, the inventor.

On June 14, 1883, an appeal was taken by Scott from that decision of the Commissioner of Patents to the Secretary of the Interior, under rules prescribed by that officer, dated May 17, 1883, who, on March 7, 1884, reversed the decision of the Commissioner of Patents in favor of

Gill, adjudged Scott to be the original and first inventor of the improvements claimed, and that Gill was not entitled to a patent therefor.

In his return to the alternative writ the Commissioner of Patents, admitting that he had refused, in compliance with the demand of the relators, to accept their tender of the final fee, and to prepare the patent for signature, and to take any further steps therein, declares

that he so refused, not because he desired to make further inquiry, or to be further advised in that behalf, no motion or other proceeding for rehearing or review had been taken or was pending before him in that behalf, but that he based his refusal, and does so still, solely upon the ground that the honorable the Secretary of the Interior had entertained the appeal taken to him from said decision under the rules aforesaid, and had, in pursuance, of said appeal, entered a decision reversing that of the Commissioner of Patents, and awarded priority of invention to Walter Scott. The return proceeds as follows:

Your respondent further says that for many years, and until 1881, it was held in pursuance of decisions and opinions of the honorable Attorney-General made in that behalf, that the honorable the Secretary of the Interior had, and therefore has, no legal authority to review on appeal a decision of the Commissioner of Patents, wherein the Commissioner has finally adjudged an applicant to be entitled to a patent as prayed for in his application; in other words, that the judgment of the Commissioner of Patents upon the right of an applicant to have and receive a patent is final and conclusive, subject only to review by the supreme court of the District of Columbia, and such other courts as have jurisdiction in that behalf, and by the Commissioner; and the practice of the Patent Office and the honorable the Secretary of the Interior conformed thereto. This question, however, was again raised in the cases of Nicholson v. Edison and Le Roy v. Hopkins, and the honorable the Attorney-General of the United States, to whom the question was again referred, in an opinion signed on the 20th day of August, 1881, held that the honorable the Secretary of the Interior had and could, on appeal to him, exercise the jurisdiction to review the Commissioner of Patents, and control his action in that behalf; and later on, to wit, the 26th day of February, 1884, the honorable Secretary, in an official letter (a copy of which is hereto attached, marked “E”), advised your respondent that he, the honorable Secretary, had, in pursuance of the opinion of the honorable Attorney-General, exercised jurisdiction on appeal from the judicial action of the Commissioner in determining questions devolved upon him by the statute.

In deference to that opinion and the action of the honorable the Secretary of the Interior in the case under consideration your respondent refused, and does refuse, to accede to the demand of the relator. That in view of the decisions and the uniform practice of the Commissioners of Patents and the heads of the Department of the Interior prior to 1881, doubt and uncertainty have arisen touching the legal obligations devolving upon your respondent in the case under consideration, and those of like character.

Your respondent further says that if the judgment of the Commissioner of Patents, which is, that the relator is entitled to receive his patent as prayed for, is final, and if npon such judgment it is the lawful duty of the respondent to accept said final fee and take the necessary and proper steps to prepare said patent for issue, as prayed, then your respondent has improperly refused, and does improperly refuse, to prepare said patent for issue; but if his decision is subject to review and reversal on appeal to the honorable the Secretary of the Interior, then such refusal on the part of your respondent to accept said fee and prepare said patent for issue is right and proper. The return of the Commissioner also sets out as exhibits the decision of his predecessor in office awarding priority of invention to Gill and

adjudging him to be entitled to a patent; the appeal of Scott to the Secretary of the Interior; the rules governing such appeals as adopted and promulgated by that officer; the decision on that appeal by the Secretary communicated by letter to the Commissioner, reversing the decision of the Commissioner and awarding priority of invention to Scott, and a subsequent letter of the Secretary to the Commissioner, dated February 26, 1884, in which he states that at the request of his predecessor, Mr. Kirkwood, in connection with the case of Nicholson v. Edison and Le Roy v. Hopkins, the Attorney-General considered the question as to the extent of the supervisory authority of the Secretary over the acts of the Commissioner, and, in an opinion dated August 20, 1881, reached the conclusion that the final discretion in all matters relating to the granting of patents is lodged in the Secretary of the Interior; that Secretary Kirkwood concurred in that opinion, and from that time to the present, appeals from the judicial action of the Commissioner of Patents have been considered by the Secretary of the Interior; that the attention of Congress was particularly directed to this new practice in the annual report of Secretary of the Interior for 1881, and that there has not since been any legislative expression of dissent from the interpretation the existing law had received; and that he does not feel justified in discontinuing a practice which he finds thus established.

It is clear enough that if the action of the Commissioner of Patents, in the matter of controversy, is subject to the order of the Secretary of the Interior, the judgment of the Supreme Court of the District of Columbia must be reversed, for mandamus evidently will not lie to compel a public officer to do a particular thing which his superior in authority has lawfully ordered him not to do.

The direct and immediate question, therefore, for our determination, is, whether the Secretary of the Interior had power by law to revise and reverse the action of the Commissioner of Patents in awarding to Gill priority of invention and adjudging him entitled to a patent.

The authority and power claimed for the Secretary of the Interior are asserted and maintained upon these general grounds: that he is the head of the Department of which the Patent Office is a bureau; that the Secretary is charged by section 441 Revised Statutes with the supervision of public business relating to patents for inventions, in the same terms and in the same sense as in the cases of the various other subjects which in that section are classed together-to wit, the census, the public lands, the Indians, pensions and bounty lands, the custody and distribution of publications, &c.; that by section 4883 it is required that all patents shall be signed by the Secretary, as the responsible representative of the Government, in whose name the grant is made, and countersigned by the Commissioner of Patents, only to attest the act of his superior; that by section 481, while the Commissioner is required to superintend or perform all duties respecting the granting and issu ing of patents directed by law, it is thereby also provided that it must