the perfection of which would be greatly lessened if stripped of these inventions, is of very great value to the public-far beyond any amount that he has received. The great popularity of the machine is admitted. To what extent the machine is indebted to these inventions for that popularity it is difficult to state.

It has not been made to appear wherein an extension of such of these patents as were properly granted would be prejudicial to the public. It is true, in a general sense, that monopolies are restrictive upon trade, and tend to increase prices. It is doubtful whether this is so generally true, however, in regard to the manufacture of mowers and reapers. The entire sale of this class of machinery is confined to about two months in the year; hence, to manufacture enough to supply the demand requires the investment of an amount of capital that probably could not be commanded, except for the incidental protection given by patents. The number of competing machines in the market is such that exorbitant prices cannot be demanded.

Nos. 764, 765, and 766, reissues of the original patent No. 20,180, and Nos. 777 and 778, reissues of the original patent No. 20,181, are extended. Extension of the others is refused.

R. A. CHESEBROUGH vs. C. TOPPAN.

Interference.

APPEAL FROM THE BOARD OF EXAMINERS-IN-CHIEF IN THE MATTER OF THE INTERFERENCE BETWEEN THE APPLICATIONS OF ROBERT A. CHESEBROUGH AND THAT OF CHARLES TOPPAN FOR IMPROVEMENT IN MANUFACTURE OF OILS, ETC., FROM PETROLEUM.

(Decided May 7, 1872.)

Where one party to an interference in his testimony in chief has confined himself to the statement of facts as occurring at a specific time in operations conducted in the presence of both parties, supposing, in good faith, that the facts elicited as occurring at this time would govern the decision as to priority: it is in the discretion of the Commissioner to allow further evidence to be adduced when the other party brings in facts of previous occurrence, in a case where the interference was instituted before the date of the rule requiring preliminary statements.

The fact that a party made but a small quantity of an article may be fairly accounted for by a showing that there was no demand for it. The discovery by a second party of a new use for the article does not affect the prior right of the previous inventor.

LEGGETT, Commissioner:

The subject of controversy in this case is a peculiar substance obtained by filtering through bone-black or its equivalent, at a high temperature, vacuum-oil, or the residuum of the vacuum-still, resulting from the distillation of crude petroleum. Toppan claims the process and the

article produced. Chesebrough claims only the article produced. Chesebrough names the article "Vaseline.”

Chesebrough is extensively engaged in New York in refining petroleum, and in manufacturing numerous articles derived from that oil. Toppan is engaged with a company largely interested in leather manufacturing in Boston. The chief use of this vaseline is as a stuffing in the manufacture of leather, though it is also used to a small extent as a toilet article. The facts developed in the testimony are substantially these: In the summer of 1868, Toppan went to a chemist with some vacuum-oil, or, as it is sometimes called by the witnesses, "black oil," and desired to know whether the color and odor could not be removed without changing its qualities as a stuffing in the manufacture of leather. He was advised by the chemist to try filtering it through bone-black, and to construct a filter from a stove-pipe or barrel. He made some experiments, but evidently with unsatisfactory results. The color was somewhat improved-enough so to encourage a hope that more could be done with more perfect facilities for filtering. There is room here for serious doubt as to whether Toppan used bone-black at all in this experiment. I am inclined to the belief that he used bone-dust instead―i. e., that he used powdered natural bone instead of powdered calcined bone. This belief is strengthened by the uncertainty in his own testimony on this point, and still further by the fact that in his patent he speaks of bone-dust as a filtering medium, but says nothing of bone-black. But, admitting that he used bone-black in his experiments, it is not pretended that the result was satisfactory. Under advice of his chemist he went to New York in the spring of 1869 and consulted with Mr. Chesebrough on the subject, and was at once informed that there was no difficulty whatever in taking the color and odor from the black-oil, and was shown the machinery and the procèss for doing it. He then had Mr. Chesebrough refine several gallons for him, and shortly afterward several barrels.

Toppan's whole case rests upon his claim that Chesebrough made this vaseline under his (Toppan's) directions, and that he really reduced the invention to practice by the hands and machinery of Mr. Chesebrough. Mr. Chesebrough being informed by Mr. Toppan that such was his claim, and that he made no pretensions to an earlier date for his invention, confined his testimony in chief to showing that Toppan gave no directions whatever as to the process of manufacturing, and that he expressed surprise that it could be so successfully done. When Toppan took his testimony, however, he went back to his experiments with the stove-pipe filter in the summer of 1868, and connects that with his trip to New York in such manner as to establish the fact that Chesebrough's efforts at that time were only the closing of his (Toppan's) experiments. When Chesebrough took his rebutting testimony he called two of his employés and proved that he made the same article in the same way from residuum or vacuum oil as early as 1867. This testimony is so

positive as really to leave no doubt of the fact. The only question is, should the testimony be received?

This interference was instituted before the date of the rule requiring preliminary statemets. Chesebrough was led by Toppan to believe that the whole case depended upon who was entitled to the credit of the result of the filtering done in 1869; but when Toppan went back of that date, Chesebrough, under the circumstances, clearly had a right to do the same.

It is true that Chesebrough made but very small quantities of this oil before 1869, simply because there was no demand for it. He seems to have had no knowledge of the fact that it could be used in large quantities in the manufacture of leather. Toppan, so far as the evidence shows, was the first to discover such use for the oil, but not the first to discover or make the oil itself.

The decision of the Board of Appeals is reversed and priority awarded to Chesebrough.

L. L. DUNLAP vs. J. MINETREE.

Interference.

APPEAL FROM THE BOARD OF EXAMINERS-IN-CHIEF IN THE MATTER OF THE INTERFERENCE BETWEEN THE APPLICATIONS OF L. L. DUNLAP AND OF JAMES MINETREE, ASSIGNOR, ETC., FOR A PATENT FOR AN INDIA RUBBER NUT.

(Decided May 9, 1872.)

A rubber jain-nut made with an orifice smaller than the screw to which it is to be attached, and intended to be expanded upon a tube and slipped therefrom into position on the screw, which it embraces by its retractile force, is not met by reference to a nut having an orifice large enough to allow it to be screwed on to the screw.

The public use of a perfected invention for eleven years before applying for a patent constitutes an abandonment of the invention to the public.

LEGGETT, Commissioner :

The article in controversy is intended for a jam-nut, and is so described by both parties. While the nut in each case is made of rubber, and each intended to accomplish the same result, yet there is a very important difference in the modes of constructing and applying the nuts, in consequence of which the end attained in one is far superior to that in the other.

Dunlap takes rubber of the proper form and makes a hole through of sufficient size to enable him to screw it upon the bolt where it is to be applied. A rubber nut thus applied could have but slight effect as a jam-nut. Minetree cuts the hole in 'the nut considerably smaller than the bolt-too small to be screwed upon it. It is then placed upon the

small end of a conical tube, the other end being large enough to receive the end of the bolt. The nut is then forced over the large end of the tube against the iron nut, when its retractile force draws it firmly into the threads of the screw. Had Minetree confined his claim to his particular mode of constructing and applying the rubber nut there would have been no interference between the two applications; but both parties have claimed, broadly, the rubber nut-hence the interference.

Dunlap shows in his statement and his testimony that he has used the rubber nut, as he constructs it, in his mill and upon carriages, ever since 1860, and has all the time been satisfied with the results. He made the nuts from old car-springs. He presents as exhibits different specimens, made at different time between 1860 and the time of filing them. All are crude and imperfect, and, except for the testimony showing that they have produced satisfactory results, I should unhesitatingly say that in Dunlap's hands the invention was still in a state of crude experimentation. At any rate, the testimony is clear that he had brought the invention to the same state of perfection in 1860 that he has now, and his proof is that he has had it in successful use ever since.

Minetree does not pretend to have invented the rubber nut until January, 1871.

Upon the broad claim to a rubber nut, priority of invention must be awarded to Dunlap; but, at the same time, I fully concur with the majority of the Board of Appeals in the opinion that eleven years of public use of the invention. before applying for a patent must be regarded as abandoning the invention to the public.

In further considering Dunlap's application the examiner will take notice of the statement and testimony in this case. Minetree should be allowed to amend so as to claim only his mode of constructing and applying the nuts, and, if not met by other references, to take his patent.

JOHN C. BIRDSELL.

Extension.

IN THE MATTER OF THE APPLICATION OF JOHN C. BIRDSELL FOR AN EXTENSION OF HIS PATENT GRANTED MAY 18, 1858, AND REISSUED APRIL 8, 1862, FOR IMPROVEMENT IN MACHINE FOR THRASHING, HULLING, AND CLEANING CLOVER-SEED.

(Decided May 10, 1872.)

Want of originality—Insufficiency of "statement of account.”

LEGGETT, Commissioner :

The patent under consideration embraces three claims: The first is for a combination of the thrashing and hulling cylinders. The second

is for a combination, with these cylinders, of the bolting or screening and conveying apparatus. The third is for a combination of the thrashing and hulling cylinders with the screening and fanning apparatus.

The extension is strenuously opposed by manufactures adversely interested, and the testimony taken makes over five hundred pages of printed matter, besides the briefs and arguments of counsel. It is not, of course, expected that all this testimony will be read. The most that I have found it possible to do, has been to examine such portions of the testimony as have been specially referred to in the arguments of counsel. The points relied upon by the remonstrants are substantially1. That the patentee was anticipated in the invention; and

2. That he has been guilty of fraud in the statement of his account. The chief reliance of the opposition to establish the first point seems to be the machine patented by Henry Hizer, June 14, 1845. There is no satisfactory proof that Hizer's machine was ever made differently from the model and drawing in the Office, upon which his patent was ob tained. It only requires an inspection of these to show that his machine as patented never had, and was never intended to have, a thrashingcylinder. The Hizer machine was designed to take the clover-heads after they had been separated from the straw and hull them. It was a huller, and not a thrasher and huller. The cylinder relied upon in this contest as the thrashing or separating cylinder was intended and described simply as a feeding-rake, and, as constructed, was not capable of being used as a thrasher. There is, however, considerable testimony tending to prove that, as actually constructed, it had a thrashing-cylinder; but the testimony on that point is contradicted. Clover-heads embrace so much chaff that a casual observer might very easily mistake them, when in bulk, for clover in the straw. I find no satisfactory proof that Hizer's machine was ever made or used with a thrashingcylinder, and in this respect it differed radically from Birdsell's machine. Another machine referred to as anticipating applicant's invention is one made by William Rowe, of West Virginia. This, however, needs but little consideration, as it is very doubtful whether it ever worked successfully, and, even if it did, it was constructed upon a plan differing radically from applicant's. The same may be said of the Hatheway machine, about which some testimony has been taken.

There probably was never a valuable patent issued where something resembling the invention could not be found, either in fact or in the imagination of witnesses, to be trumped up whenever the validity of the patent was called in question. When a successful machine has been invented and put into use, it is not difficult for a witness's imagination to supply the defects of some old machine that he has seen years before, and establish identity, often to the full satisfaction of his own judgment. The mind is apt to confuse subsequent information with prior recollection. This tendency is, I think, the explanation of the contradictory testimony in this case.