decision cannot be reversed so as to affect in any way the present status of Imlay. Mason has one application in the case, but it was filed some considerable time subsequent to the date of his patent which shows the same devices. He therefore could not obtain the claim set up by Otterson in his present application, but would be obliged to reissue his prior patent if he wished to obtain a claim for the combination in question. The actual controversy, then, is between patents, which, while showing the devices, do not contain the claim in controversy. If this case should be reopened and a final decision given in favor of either Mason or Rowley, it would be a mere nugatory decision, and would not affect the legal rights of the parties in any way whatever. Whichever patentee should be successful would be obliged to reissue his patent before. he could enforce the decision against his opponent. It would be injudicious to reopen this case and submit parties to further annoyance and expense for the purpose of securing a decision of so little importance. 5. The "Consolidated Fruit-Jar Company" are owners only of Mason's patents. Under the decision already rendered Rowley has no right which he can enforce against the Mason patents, as he has at present no claim for the invention in controversy. The said company, therefore, is not injured in the least by said decision, and may continue the prosecution of its legitimate business without fear of molestation. If, hereafter, Rowley should attempt to obtain a claim for the particu lar combination of devices named, it would undoubtedly result in a new interference, as the Office, under the circumstances, would not be willing to give Rowley a claim for the invention without further evidence on the question of priority. For these reasons it seems to me that there is no good ground for reopening the interference. The motion is accordingly overruled. W. WEITLING, H. SAUERBIER, AND A. J. CROSS vs. S. G. APPEAL FROM THE BOARD OF EXAMINERS-IN-CHIEF IN THE MATTER (Decided August 15, 1872.) Section 35 of the patent act, authorizing renewed applications, cures defects caused by mere delay to prosecute the original application for patent. So far as the Office practice is concerned, no obstacle is presented to the appeal to the court of other questions than that of priority of invention, when the decision of an interference turns on them. It is immaterial what tribunal originally passes upon any question in an interference, so far as the right to an appeal to the court is concerned. LEGGETT, Commissioner: The facts in this case are as follows: The original application of Wm. Weitling was filed March 8, rejected March 31, and withdrawn April 16, 1855. Under sec. 35 of the act of July 8, 1870, his application was renewed and put in interference with three pending applications and four patents, all showing the subject-matter of his claim, and ranging in date of filing in the Office from November 3, 1869, to March 25, 1871. The filing of preliminary statements required by Rule 41 was authorized to be dispensed with, and as no evidence of date of invention other than that appearing by the dates of filing their respective applications was offered by any of the parties, it must be adjudged upon the record, as it has already been adjudged by the Examiner of Interferences and by the board, that Weitling is the prior inventor. These tribunals hold, however, from the facts of the record, that Weitling has abandoned his invention, and the issue now is upon the single question of abandonment. Incidentally, however, the following questions have arisen and been discussed: 1. Should the Examiner of Interferences properly have jurisdiction over any question but that of priority of invention? 2. If so, then in case an issue is decided by him in an interference upon the question of abandonment, public use, or any question other than that of priority, and is carried up to the Commissioner on appeal, may a further appeal be taken to the courts? Or, is the law to be construed as cutting off all appeals from the decision of the Commissioner upon whatever question, in interference cases? These questions will be briefly considered before coming to the main issue upon the question of abandonment. With regard to the second question, sec. 42 of the patent act provides "That whenever an application is made for a patent which, in the opinion of the Commissioner, would interfere with any pending ap. plication, or with any unexpired patent, he shall give notice thereof to the applicant or applicants and patentee, as the case may be, and shall direct the primary examiner [Examiner of Interferences] to proceed to determine the question of priority of invention. And the Commissioner may issue a patent to the party who shall be adjudged the prior inventor," &c. Sec. 48 excepts "a party to an interference" from the benefits of appeal beyond the Commissioner. The first section quoted relates to an interference upon the question of priority of invention alone, and the second can properly be held, I think, to refer only to the first. Therefore I see no ground, so far as the Office is concerned, for holding that these sections relate to an interference upon any other question than that of priority of invention, except so far as other questions may be subordinate or subsidiary to that question. It would seem to be good policy, and is in accordance with the general construction of our judicial systems, to favor rather than to curtail the right of appeal, especially with regard to matters that assume the value and importance both to individuals and the public often involved in letters patent. The statutory interference upon the question of priority of invention, then, may be considered the only matter intended to be cut off from appeal beyond the Commissioner in person. I am aware, however, that this is a subject properly referable to the Supreme Court of the District of Columbia for decision upon a question of jurisdiction, and I believe it. is now pending before that tribunal. Of course its consideration here, therefore, is merely obiter dictum; but I deem it proper, so far as its decision may bear upon the practice of the Office, to pass upon it. With reference to the first question, it is to be observed that the statutory interference above referred to is not the only one with which the Office may deal. There is another, arising of necessity from section 35 of the statute, providing for the renewal of rejected and withdrawn applications, and resting upon other grounds. To enable the Office to dispose of such interferences, the primary object of which is to afford an opportunity for the production of evidence, not otherwise attainable, upon the question of abandonment, Rule 41 has been provided. It is a matter wholly within the discretion of the Commissioner, having in view the proper transaction of the business of the Office, what questions or whether all questions arising out of interference cases shall be decided, in the first instance, by the Examiner of Interferences or some other primary examiner. But it makes no difference whatever with respect to the right of appeal from the Commissioner what subordinate tribunal may be assigned the duty of passing originally upon these various questions. To what tribunals they may be appealed is to be determined altogether by the nature of the questions themselves and the law relating to them. Coming to the main question, that of abandonment, it is to be noted that the primary object of this interference was to afford an opportunity for the production of evidence upon that question. None, however, has been produced, except that of two witnesses in behalf of Weitling, who testify to his poverty and to their knowledge of his unsuccessful attempts to prosecute his application. But his inability to follow up his applica tion is not made out, in view of the fact shown by the records of the Office, that he subsequently filed other applications and took out three patents; and in view of the further fact that his withdrawal was made after only one rejection, and the next official action could have been had apon mere request and without expense. The important considerations are that there is nothing in the record or in evidence showing express abandonment; nor abandonment by public use prior to filing the original application; nor abandonment by public use subsequent to that act and prior to filing the renewal-as the oldest case produced in the Office showing the subject-matter of Weitling's claim, was filed less than two years before his renewed application; nor do any of the patents granted and now in interference cover by their claims the invention of Weitling. The question of abandonment, then, turns upon the question of Weitling's diligence in prosecuting his application in the Office; or, in other words, upon the question whether mere delay and lapse of time can work abandonment. I am clearly of the opinion that the statute making special provision for renewing applications was intended to and does cure all defects in rejected and withdrawn applications arising from this cause alone, as recognized in the practice of the Office and ably sustained in the decision of my learned predecessor in Ex parte Cochran, D., 1869, p. 30. Congress evidently believed that the Office had, by unwarrantable rejections, done injustice to meritorious inventors, and made the matter a subject for remedial legislation. It is not to be supposed that it was the intention of Congress in this legislation to merely re-enact the old law, and place the limit of time for renewal under it at six months after its passage. But even if this were a correct view of the effect of the statute, I should find abundant reasons for looking with disfavor upon presumptions which deprive a man of his invention and at the same time do not confer it upon the public until about the time he again seeks the benefits of a patent. The mistakes of the Office to the injury of an applicant in these renewed cases should be viewed side by side with his subsequent neglect to come before the Office, in order to ascertain how far the Office itself is responsible for that neglect. In this case the Office rejected the application, and the applicant had reason to believe, however meritorious his invention was in his own estimation, that the Office had determined not to allow a patent. Under this impressionthe natural result of the action of the Office-he waited until he discovered a change in the Office opinion manifested by recognizing the invention as patentable, and such delay is not conclusive evidence going to establish abandonment. Mere delay and lapse of time, therefore, being disregarded, there remains nothing to show abandonment on the part of Weitling, and the decision of the Board of Examiners-in-Chief is overruled as to that question, and sustained as to the question of priority of invention. J. C. TUCKER AND J. F. DAVIS. Interference. APPEAL FROM THE EXAMINER OF INTERFERENCES IN THE MATTER OF THE INTERFERENCE BETWEEN THE APPLICATIONS OF J. C. TUCKER AND J. F. DAVIS. CONCRETE PAVEMENTS. (Decided August 19, 1872.) Invention or publication abroad. Testimony in reference to the date of producing a device in a foreign conntry, that has not been there patented or described in a printed publication, is not admissible, because it is not evidence of invention in contemplation of the patent act, and therefore has no bearing upon the question. LEGGETT, Commissioner: The contest in this interference is between two applicants for patent, one of whom, Tucker, is an American citizen, and the other, Davis, a citizen of France. Davis is the first in the Office, but neither party relies on the date of filing his application as proof of the date of his invention. Davis seeks to prove priority by introducing testimony showing that he made his invention in France prior to the date of invention here established by Tucker. It does not appear that Davis's invention had been patented or described in any printed publication before he brought it to this country. Motion has been made in behalf of Tucker, asking that the testimony relating to the date of the invention by Davis in France be ruled out. This motion has been granted by the Examiner of Interferences to this extent-"The testimony on the part of Davis will be received for the purpose of showing whether or not he brought with him upon his arrival in this country, a perfected invention, or for the purpose of showing the date of the perfection of the same, subsequent to his arrival in the United States, and for no other purpose." This decision is in accordance with the practice of the Office under the old law, as abundantly shown by the cases cited by the examiner. See Coburn vs. Stark, Commissioner's Decisions, 1846, (manuscript;) Bain vs. Morse, Commissioner's Decisions, 1848, 1st B. App., p. 222; Opinions of the Attorneys-General, vol. 5, p. 18; Lang vs. Hyde, Commissioner's Decisions, 1849, (manuscript;) Kingsley vs. Herriet et al., Commissioner's Decisions, 1853. It is a proper one now, unless the act of July 8, 1870, altered the previous law bearing upon this question. A comparison of sections 7 and 15 of the act of 1836, and sections 24, 25, and 62 of the act of 1870, shows that the new law is the same, so far as this question is affected, as the old. It has been altered so as to be more liberal to foreigners in the matter of fees; it has dispensed with the oath declaring one year's residence and intended citizenship in design applications; and, in fact, it has placed them on precisely the same footing with citizens of the United States, except with regard to caveats. In this case the fact has not the slightest bearing that one of the applicants is an alien. If both were citizens the law would apply precisely as it does now. The important matter is not who made the invention, but when was it made in contemplation of law. Ever since the act of July 4, 1836, it has been the law in this country that the existence of a device in a foreign country, unless patented or described in a printed publication, is no bar either to the grant or to the validity of a patent here, provided there has not been two years' public use here. In other words, the mere existence of a device in a foreign country is not a fact having any significance or to be recognized at all in connection with our patent laws. The reason is obvious. It is derived from the fundamental policy of our patent system, which is "to promote the progress of science and the useful arts" in this country. A device existing in a foreign country, unless it has been patented or described in a printed publication, so that there |