and better calculated to kill sheep than vermin; but if merely dead oil of tar was meant, then the result would obviously have been, as established by the testimony of the chemical experts, the production of a very different commodity. I should not doubt, without the light of the testimony, that, if the former were used in the proportion set forth, it would not make either a practicable soap or sheep-dip, or that, as remarked by one of the counsel, it would cost more than the value of the sheep to be protected. But it is not doubted that if the latter were used, as specified, a very good sheep-dip might be produced.

Therefore, unless well-established legal rules for the construction of language be wholly disregarded and the preponderance of the testimony ignored, it is certain that in McDougal's patent of 1860 he did not contemplate the use of carbolic acid proper, and that he did not in any sense produce, or intend to produce, a soap. The idea is absurd that an animal vermin-destroyer could be a soap merely in demand for the ordi. nary uses of that article.

In his patent of 1867, however, McDougal describes both a soap and a sheep-dip-the latter substantially identical with that covered by his English patent, and the former evidently composed of carbolic acid proper as an ingredient, but employed in very different quantity and proportion from those of the heavy oil used in compounding the sheepdip. This soap is identical with that of Eames and Seely, and the sheepdip is altogether another thing, having no relation to their invention. The third claim in McDougal's reissue application covers his soap, and is the only one in interference. McDougal's patent of 1867, so far as it describes a soap, ought never to have been granted without an interference with the patent of Eames and Seely, which was issued on the very day that McDougal's application was filed. A little more care upon the part of the examiner at that time would have saved the Office from a great amount of vexatious labor and the parties from thousands of dollars of needless expense.

The decision of the Board of Appeals is reversed, and priority of invention awarded to Eames and Seely.

J. P. CHATILLON.

Appeal.

APPEAL FROM THE BOARD OF EXAMINERS-IN-CHIEF IN THE MATTER OF THE APPLICATION OF JOHN P. CHATILLON FOR PATENT FOR SPRINGBALANCE FRONT, FILED NOVEMBER 13, 1871.

(Decided July 24, 1872.)

Change of material-References in rejection-Novelty-Invention-"Articles of manufacture."

The mere substitution of a sheet-metal face-plate for one of cast metal, when no other improvement is effected than such as results from the mere substitution, is not patentable.

In rejecting an application it is not necessary that the reference shall involve identity of material, form, and specific use.

LEGGETT, Commissioner:

This alleged invention consists in a front or face-plate for spring. balances, made of sheet-metal, which is intended as a substitute for the ordinary cast-metal face-plate. Such cast-metal plates for balances, it appears, have heretofore been provided with a solid raised circular bead for holding in place the sash which contains the dial-glass, and this bead has had two recesses formed in it for the reception of projecting ears upon the sash for securing the same upon the face-plate, which applicant has illustrated in Fig. 4 of his drawings. Applicant proposes to stamp up a bead from sheet-metal, which will be hollow on the back; and instead of stamping up recesses, he stamps holes in the plate for the reception of projections or spurs on the sash, which he clinches, when the sash is in place, in a manner shown in the references cited by the examiner. He claims a sheet-metal face-plate as an article of manufacture, and alleges three advantages for it over the old cast-metal plates: First, that the sash can be more conveniently attached; second, that he saves material and expense; and, third, that he produces a better-looking face-plate. The truth of the first allegation is not apparent. On the contrary, it is obvious that it would be quite as convenient to attach the sash in the old way upon the old cast plate; but however this may be, the references show that applicant's plan of attachment is not his invention-it is as old as the clinching of a nail by bending. The second advantage asserted no doubt exists, but it is due alone to the fact that sheet-metal is employed. The third may be admitted, but is without any bearing upon the present issue.

All that I perceive applicant has done is to substitute a sheet-iron for a cast-iron face-plate, without overcoming any obstacle, making any discovery, or manifesting any invention. I will not go so far as to say

that such a substitution, even at this late day, might not possibly be made under such peculiar circumstances as to involve ingenuity and amount to invention; but, as remarked by the examiner, "The use of sheet-metal in the manufacture of cheap articles has become so extended in the arts that the mere substitution of a sheet-metal plate for one of cast metal"-when no other improvement is effected than such as results from the mere substitution—is not sufficient ground to warrant the grant of a patent.

I cannot see how the matter is helped any by modifying the application so as to claim the device as a "new article of manufacture." The applicant argues that unless an exact reference can be found involving an identity of material, form, and specific use, a patent must be granted. This position is too absurd to require consideration.

Invention is an essential prerequisite to a patent. While it is not always easy to distinguish the exact, point where ordinary mechanical skill gives place to invention, yet there are multitudes of devices and articles of manufacture so far removed from this doubtful point as to leave the mind in no uncertainty as to whether the inventive faculty has been exercised or not. One may often say positively there is no invention, even though nothing like the thing in question, in its entirety, was ever before made. Novelty, in this sense, does not necessarily presuppose invention. Applicant has submitted one well-known material for another, has adapted it by a well-known process, and attached it by a method in common use. When he determined to use sheet-metal in place of cast, he had only to say so to any person skilled in working sheet-metal, and he would have produced substantially the device in question, without direction or instruction. The law certainly never con. templated giving a separate patent upon every possible form or use to which sheet metal could be put. If applicant's device is patentable, then, as a new article of manufacture, every household utensil, and every possible article of clothing, and everything else that is made, is patentable, unless the Office can produce on exact copy of the same as a reference.

This subject is fully discussed in the case of Ackerson, ex parte, Commissioner's Decision of 1869, page 74, to which reference is made. The decision of the board is affirmed.

H. MEWES.

Appeal.

APPEAL FROM THE BOARD OF EXAMINERS-IN-CHIEF IN THE MATTER OF THE APPLICATION OF HENRY MEWES FOR PATENT IN IMPROVEMENT IN CUTTER BARS FOR MOWERS AND REAPERS.

(Decided July 24, 1872.)

Practice.

Before an application is permitted to be appealed upon its merits it should be in condi tion to be at once issued if the examiner be reversed.

LEGGETT, Commissioner:

This case had several examinations by the principal examiner, and was by him rejected. The applicant made numerous amendments. The final amendment embraced two claims, the latter of which is entirely inconsistent with the description of the invention in the body of the specifications. This fact was recognized by the principal examiner, and also by the Board of Appeals. The examiner permitted the appeal to be taken, and the Board of Appeals heard the same and permitted the appeal to be taken to the Commissioner in person without first requiring that either the claim or the specifications be so amended as to make them consistent with each other.

Rule 44 requires that "all claims must be passed upon and all preliminary and intermediate questions must be settled before the case is appealed to the board." The spirit of this rule is that no case shall be appealed to the board until it is in such condition that a patent may be at once issued if the board reverse the action of the examiner. Why this rule has been ignored in this case I am at a loss to understand. The examiner should never have permitted it to pass from his hands in the condition it now is. Neither should the board have taken cog nizance of the case in such condition. Should the Commissioner act upon the case as the board has done, and sustain the action of the board, the applicant would have the right to appeal to the courts; and the authority of the Commissioner to require a change in either specifications or claims after the court has reversed the action of the Commissioner is, at least, doubtful. Hence, the Commissioner will not examine the case in its present condition upon its merits, but returns the same to the principal examiner to have the preliminary questions settled.

HUNTINGTON vs. VAN HAGAN.

Interference.

APPEAL FROM THE BOARD OF EXAMINERS-IN-CHIEF IN THE MATTER OF THE INTERFERENCE BETWEEN THE APPLICATION OF FREDERICK M. HUNTINGTON, FILED JUNE 26, 1871, AND LETTERS PATENT NO. 114,068, ISSUED TO ISAAC VAN HAGAN, APRIL 25, 1871, for maCHINE FOR PRESSING AND STAMPING SHEET-METAL.

(Decided July 25, 1872.)

Decision on the statements presented.

LEGGETT, Commissioner :

The invention in controversy is an attachment for a machine used in the manufacture of sheet-metal covers for cans, boxes, &c. The question at issue is not which party made the invention first, but which invented the device. There is no pretense that each invented the device independently of the other. Each swears positively that he made the invention and disclosed it to the other. The language of each is so positive, and the detail of circumstances by each is so minute and particular, yet so directly antagonistic, as to leave no doubt but one or the other of the parties bas deliberately committed perjury. As there is no direct attempt to impeach either, the testimony of one offsets the other, and that of neither has any value in the case except so far as it is corroborated by other testimony.

At the time the invention was made both parties were employed in the shops of Frank Sturges & Co., in Chicago-Van Hagan as general superintendent, and Huntington as foreman of one class of work.

Van Hagan claims to have conceived the invention in May, 1869, and says that he very soon afterward explained it to his attorney. In this statement he is fully corroborated by his attorney, but by no one elsenot even by the other witnesses called by himself. The attorney only testifies as to the time that Van Hagan consulted him, and fixes that time in the summer of 1869. He made a record of the matter in his books; but all of his books and records were burned in the Chicago fire last October. He therefore testifies only from memory.

Huntington claims to have had the idea of his invention as early as April or May of 1868, and that in 1869 he explained it to Harding and Wright, two men who worked in the same shop with himself. He also swears that early in the spring of 1870 he took Van Hagan to a Fowler press in the shop and explained to him the invention, and how to attach it to the press. Soon after this Huntington commenced the construction of the device. The draughtsman, the pattern-maker, and several other workmen in the shop testify that they received all their