satisfied with the doctrine here set forth, but I know of no American decision that gives authoritative announcement against it, while the general spirit of the decisions of the courts in trade-mark cases fully sustains it.

Try the applicant's device by these tests. First, it is not the mere name of a person, firm, or corporation. Second, there is nothing in it calculated to deceive any one as to the true origin or character of the umbrellas to which it is attached. Third, it is not generic in its siguifi. cation nor description of quality. Fourth, it is an arbitrary combination of numerals, having, as used, no other meaning than to distinguish the applicant's goods in the market, and indicate to purchasers that all umbrellas bearing this mark have one and the same origin. It is true, "140" is a common arrangement of numerals; but a common word or figure may be used as a trade-mark, provided it is not used with its ordinary signification.-Messerole vs. Tynberg, 4 Abb. Pr., N. S., 414. The decision of the Examiner of Trade-Marks is reversed, and the certificate of registration will be granted.

CHAS. VAN WAGENEN.-EX PARTE.

APPEAL FROM THE EXAMINERS-IN-CHIEF ON AN APPLICATION FOR LETTERS PATENT FOR AN ALLEGED IMPROVED GRATE-BAR.

(Decided January 11, 1872.)

Patentable combination.

The mere aggregation of two devices which are entirely independent of each other, neither of them being modified in its action by the presence of the other, does not constitute a veritable combination, and is not patentable.

To form a legitimate combination the parts must act upon each other, either mediately or intermediately, so that the action or character of one is influenced, affected, or produced by the action or character of the other.

The first inventor of an improvement of general application in grate-bars cannot be prevented from applying it generally, although in his patent he only shows it in connection with bars of a particular class.

Skill in making selections is radically different from invention.

DUNCAN, Acting Commissioner :

Where a furnace-grate is constructed of separate ribs, bars, or sections, some means becomes necessary to prevent their unequal warping or twisting, the object being to secure in the grate as smooth and even an upper surface as possible. One well-known method of accomplishing this, as is shown by the references, is to interlock the bars by means of lugs cast upon the sides of one bar, aud entering recesses formed by corresponding lugs upon the sides of those adjoining. In this way the

strain upon any one bar is measurably distributed throughout the entire series.

This is the method employed by the applicant; but to this construction of his grate he proposes to apply another well-known feature, viz., the alternation of bars of unequal depth, a portion of them being cast with a wide pendent web or flange, for the purpose of giving the requisite support and strength to the grate, while the omission of the flange upon the intermediate bars is designed to insure a better draught, to keep the grate cooler, and to effect a saving of material.

The question presented by the appeal is, whether the conjunction of these two features-the lateral interlocking and the varying depth of the bars-is patentable. The posit ion assumed by the examiner and the Board of Appeals on this question seems to be that the features named are entirely independent, neither of them modifying the action of the other; so that they constitute a mere aggregation of devices, but no veritable combination. The claim appended to the application is for "a grate for furnaces composed of a series of separate interlocking bars, a portion of which are arched [provided with an arched flange] to give the requisite support and strength to the grate," &c. This, manifestly, is intended as a combination claim. Is it patentable?

The correct doctrine as to the patentability of aggregate mechanisms and devices was laid down in Ex parte Thos. J. Flagg, Commissioner's Decisions, 1870, 104; it being there stated that in order to form a legitimate combination, such as the law was designed to protect, there must be something more than mere assemblages or arrangements of parts, and that the parts must act upon each other, either mediately or intermediately, so that the action or character of one is influenced, affected, or produced by the action or character of the other. Applying this rule in the present case, it is not seen how the claim can be allowed. The operation of the interlocking devices is in no way affected by the difference in the depth of the bars; nor is the utility of the latter feature augmented in the least by adopting the particular mode shown for joining the bars together. In Sterry Smith's patent of October 2, 1866, the compound bar is made up of ribs, of which a portion are flanged, while the others, intermediate in position, are of the usual depth; and the reason assigned for this special construction is substantially that now urged by applicant in his own behalf. In Smith's patent, to be sure, the individual ribs are permanently joined by means of intermediate lugs when the casting is made; but as the invention involved in varying the depth of the ribs has no relation to the mode in which they are united, the first inventor of this improvement cannot be prevented from applying it to other classes of bars than such as are united in the particular manner shown in his first application of it. If the application of it to a different class involved any reconstruction or modification of the bar in other particulars to adopt it thereto, that might furnish a foundation for a

patent; but it can hardly be claimed that such is the case in the present instance.

There has been filed in support of the application an affidavit of the proprietor of the Delamater Iron Works, testifying to the alleged superiority of applicant's grate-bar, as regards cost of production, durability, ease of repair, and capacity for draught, over the ordinary bars in use. This affidavit, however, does not touch the fundamental questions involved in the appeal. By judicious selection of parts a man may organize a palace-car that will distance all competition, and yet have done nothing entitling him to rank as an inventor. Skill in making selections is radically different from invention. The affidavit in question goes no further than to prove that applicant's bar is one of marked utility-a fact that has not been called in question; but whether invention has been displayed in the production of it the affidavit no way determines.

The decision of the Examiners-in-Chief is affirmed, and the patent refused.

EZRA EMMERT.-EX PARTE.

APPLICATION FOR THE EXTENSION OF LETTERS PATENT FOR IM. PROVEMENT IN HARVESTERS, GRANTED JANUARY 19, 1858.

(Decided January 18, 1872.)

Practice in extensions.

Where a patent has been held during the original term by an assignee, it cannot be charged against the inventor, when he offers the patent for an extension, that he has failed to reissue it, so as to cover the special features which he deems of value, and upon which alone he bases his application.

Where the patent has remained during the original term in the hands of the inventor, who has negligently failed to bring it by reissue into that form which alone would indue it with value and enable him to reap a fair reward for his ingenuity: Held, that the Office cannot properly grant the party an extension.

DUNCAN, Acting Commissioner:

The examiner's report shows the subject-matter of the claim of this patent to be novel, but adds, as to the distinguishing feature of the combination, that it is practically worthless, and that no pretense is made that it ever has had or can have any value.

This allegation of the report is not traversed by the applicant, but he asserts that there are other features in the machine, not covered by the present claim, which are of great value, and which he would be entitled to cover by a reissue.

The history of the invention shows that these alleged novel and valuable features were made the subject of a reissue application filed in the Office in July, 1869. The application was rejected within a month after

it was filed, and was then suffered by the applicant to lie without further action for nearly two years. In May, 1871, an amendment. was filed, which was followed in the same month by a second rejection; and with that action the party rested.

Unless a good excuse for this failure to prosecute further the reissue application be offered, the judgment already entered of record in the Office as to the merits of the claims thus presented ought to govern in the consideration of the application for extension.

No such excuse is offered. The case, therefore, stands on this wise. The patentee asks the extension of his patent on a suggested hypothesis as to the value of the invention which has already been declared in a formal judgment of the Office to be untenable. The correctness of this judgment the applicant, although not hindered by any controlling disability, has not hitherto cared to call in question. It is too late to do it

now.

It sometimes happens that a patent may properly be extended with reference to features in the invention which are not covered by the claims, but which are capable of being embraced in a reissue. Where, for instance, the original patent has been held by an assignee, the inventor having in the transfer parted with all interest in and control over it, it cannot be charged against the patentee when he presents the patent for an extension that he has failed to reissue it so as to cover the special features which he deems of value, and upon which alone he bases his application for the extension. When, however, the original patent has remained in the hands of the inventor, who has negligently failed to reissue the same, he cannot reasonably ask the Office to extend it solely upon the strength of the possibilities that are latent within it. If the extension should be granted, there could be no assurance that the patent would be surrendered for reissue; and, even if this objection should be waived, the further objection would exist that the applicant through his own neglect had failed to put the patent into that form which alone would indue it with value, and enable him to reap a fair reward for the ingenuity displayed in the invention.

The extension asked for by the present applicant is refused.

G. EVELEIGH.-EX PARTE.

IN THE MATTER OF THE APPLICATION OF GEORGE EVELEIGH FOR LETTERS PATENT FOR IMPROVEMENT IN THE MANUFACTURE AND PURIFICATION OF GAS.

(Decided January 23, 1872.)

Rights of assignees before issue of patent.

A having authorized B to prosecute an application for patent and assign the patent to be obtained, and B having assigned the same to C after allowance by the Office, Held, that the right inures in C to renew the application under section 35, law of 1870, and to receive the patent when issued.

The revocation of A's power of attorney to B, after the assignment by B to C, cannot affect the possessory rights of the latter.

LEGGETT, Commissioner:

Applicant, before filing his application in the Patent Office of the United States, executed his power of attorney to Charles D. Poston, authorizing him to prosecute the application and assign the whole or any part of the patent to be obtained. The application having been allowed and passed for issue, Mr. Poston assigned the entire interest to Eastland, of San Francisco. The application having been forfeited for non-payment of the final fee within six months, subsequently, and within the period of two years, limited by the statute, the application was revived, both by Eveleigh himself and by Poston as his attorney in fact and by Eastland joining in the petition. The application was again passed for issue and the final fee paid by the attorneys for Eastland, and an order made by the Commissioner that the patent should issue to Eveleigh, assignor to Eastland.

Motion is now made that the patent shall issue to Eveleigh.

The power of attorney to Poston, in my opinion, gave him full authority to sell the invention, as set out in the application. The reference to the English patent in the power of attorney fully identifies the invention; and it cannot be supposed that the power of attorney was intended to limit the right to sell to a time subsequent to the issue of the patent, when neither the law nor the reason of things makes any such distinction. It is my opinion that the conveyance by Poston as attorney in fact passed the entire title to the invention set forth in the application of Eveleigh to Eastland, and a request to that effect having been made by him and by Poston as attorney in fact, in the petition of revival, it is my duty, in pursuance of the thirty-third section of the act of 1871, to have the patent so issued.

The power of attorney to Poston had not been revoked at the date of his assignment. Subsequently a revocation was sent to me to be recorded on certain conditions, upon which it is no part of my duty to