invention to a prior applicant, is not to be exacted. Instead of that; simply the weight of evidence, although nicely balanced, should be sufficient to turn the scale. The board have observed, even, while demanding conclusive proof from Goodman such as to overthrow a patent, that the question of priority, upon the testimony presented, is left in great doubt. But stripping Scribner of this undue advantage, the doubt is readily dissipated. It is proved that Goodman was the first to conceive the invention. He, however, quit the organ business for four years after he had begun experiments and made some progress toward its completion, during which time he gave no attention to it. But it was not till after he had resumed this business again, and renewed his experiments, that Scribner conceived the invention. From that time to the date of their respective applications there appears to have been about equal diligence, but not equal merit, so far as the actual production of organs embracing the invention in question is concerned. It is not in proof that Scribner has ever made such an organ. Nor does the merit of being first to apply for a patent referring to this invention justly belong to him. The records of the Office show that Goodman filed an application embracing the gist and foundation of it February 27, 1870. The board have evidently reversed the decision of the Examiner of Interferences in this instance with much hesitation, chiefly because impelled by the presumption in favor of the validity of the patent already granted to Scribner. Regarding the parties as on an equal footing, however, I cannot hesitate, upon the evidence, to pronounce in favor of Goodman. The decision of the board is therefore reversed.

L. C. PATTEE.

Interference.

APPEAL FROM THE BOARD OF EXAMINERS-IN-CHIEF IN THE MATTER OF THE INTERFERENCE BETWEEN THE APPLICATION OF LEWIS C. PATTEE FOR REISSUE OF PATENT NO. 121,466, GRANTED DECEMBER 5, 1871, AND THE PATENT NO. 121,664, GRANTED TO TITUS H. RUSSELL, SAME DATE, FOR SAW-MILL CARRIAGES.

(Decided December 9, 1872.)

A rehearing in a case of interference will only be granted on such a showing of merits as would entitle a mover to a new trial in a suit at law.

THACHER, Acting Commissioner :

This case, having been heard and decided by the Examiner of Interferences and the Board of Examiners-in-Chief in favor of Pattee, Russell now moves for a rehearing, and rests his motion upon alleged newlydiscovered evidence. In his own affidavit he says "That since the tes

timony was taken he has discovered new and important testimony on his own behalf; that the said testimony is not merely cumulative, and is to the effect that one of his agents-Abijah W. Hall, of Northfield, Vermontdescribed his (Russell's) invention now in controversy to the said Pattee, the contestant, in the year 1868, before Mr. Pattee claims to have made the invention; also, to the effect that Mr. Luman F. Brooks, of Lebanon, New Hampshire, heard Mr. Hall describe the said invention so that he fully understood it in the year 1868; and, in substance, that some two years afterward the said Brooks saw in operation in Mr. Pattee's saw-mill at Lebanon, New Hampshire, substantially the same device, and was then and there informed by Pattee that it was Russell's invention."

The affidavits of Hall and Brooks, embracing the above statements, are also presented.

On the other hand, in behalf of Pattee, affidavits are filed setting forth that Brooks was present at the time of the taking of the testimony of Russell, and at his request, as a witness in his behalf, but was not examined; and that during that time Russell was also repeatedly in personal communication with Hall, and engaged in conversation respecting the invention involved in the pending interference.

The law relating to the grant of new trials must dictate the decision of this motion.

The general rule in relation to after-discovered evidence as affording ground for new trials is that it must be such as reasonable diligence could not have secured at the former trial; and this, according to the general tenor of decisions, must appear affirmatively. (Hilliard on New Trials, Chap. XV., Newly-Discovered Evidence.) There are other essential requisites, which, as they are well known, and as there is no question but that they appear in this proffered testimony, need not be stated; but it is to be remarked that none of the legal requirements referring to such testimony as is relied upon to sustain the grant of new trials can be dispensed with, for the courts do not grant them except upon a clear and full showing of the justice and pre priety of so doing.

In Moore vs. The Phil. Bank it is said: "Motions of this kind are to be received with great caution, because there are few cases tried in which something new may not be hunted up, and because it tends very much to the introduction of perjury to admit new evidence after the party who has lost the verdict has had an opportunity of discovering the points both of his adversary's strength and his own weakness." (See also Aubes vs. Ealer, 2 Binney, 582; and State vs. Harding, 2 Bay, 267.)

A fatal defect as regards the grant of this motion, it appears to me, is presented in this testimony in two particulars, referring to diligence: First, Russell himself designates Hall, who is his principal witness, as "one of his agents." Second, it appears that he was in company with both Hall and Brooks; that they were cognizant of this interference, and conversed with him respecting the invention in controversy during

the time that testimony was being taken. It is not easy to believe that he could not have availed himself of all they knew by the exercise of ordinary diligence, especially as Hall was or had been his agent.

This point might be amplified and the defect as to diligence shown by a multitude of citations; but I do not regard it as necessary, as the facts bring the case plainly within the simple elementary rule upon the point.

I have no doubt, after an examination of authorities, that in a parallel case a new trial would be unhesitatingly refused before the courts, and it must be here.

The motion is denied.

AMOS M. SMITH.
Appeal.

APPEAL FROM THE BOARD OF EXAMINERS-IN-CHIEF IN THE MATTER OF THE APPLICATION OF AMOS M. SMITH FOR LETTERS PATENT FOR AN ALLEGED IMPROVEMENT IN REFRESHMENT CARS.

(Decided December 11, 1872.)

Patentability-"Arrangement"-Invention-Mechanical skill.

An arrangement of rooms in a dwelling, railway car, or other structure is not a proper subject for patent; such arrangement does not constitute patentable novelty. In considering as precedents the decisions on appeals of the individual judges of the Supreme Court of the District of Columbia, regard must be had to the regular court decisions bearing upon like questions.

The requirements of compactness and convenience incident to the arrangement of the apartments in a railway car call for judgment and taste in the architect, but not that inventive skill which it is the policy of the Government to protect by patent. The policy of grauting patents is founded upon considerations of the promotion of the public good; the grant is exceptional, and should only inure to the benefit of an inventor, as the word is judicially construed.

In determining the question of inventorship the public has rights, and discretion should be exercised to prevent the placing of unnecessary restrictions upon artisaus in a legitimate use of their mechanical skill and ingenuity.

THACHER, Acting Commissioner :

For reasons which do not fully appear upon the record, the decision of this appeal case has been postponed from time to time since 1867. A request for a decision, filed some time since, has been overlooked heretofore, and unnecessary delay occasioned thereby. As no reason appears for further postponement, the appeal is now taken up for final determination.

The following is the claim as amended:

I claim the combination and arrangement of the side passage B, the saloon H, storeroom G, counter D, passage E, and open space C, substantially as and for the purposes specified and shown.

The general arrangement of side passage and apartments is fully described in the Railroad Journal, cited as a reference. No mention is made, however, of a counter with open space in front, and to this extent the arrangement of the interior of a car may be new with applicant. This has been held by the examiner and Examiners-in-Chief not to constitute patentable novelty-in fact the board go further and say, "We cannot perceive any patentable novelty in the arrangement of the rooms, whether in a dwelling, railroad car, or other structure."

Applicant is probably correct in the statement that a modification of this ruling seems to have subsequently prevailed in the practice of the Office. Under the system of appeals as it formerly existed a patent for an invention in cars of similar nature was issued by order of one of the judges of the Supreme Court of the District of Columbia, since which several of like description have been allowed by the Office. But as it is now generally understood that these decisions of individual judges have not the sanction of regular court decisions, it is believed that this precedent should not be regarded as going to the extent of creating a general rule to be followed by the Office, in view of the contrary tenor of many other decisions involving the same principle.

The position taken by the Board of Appeals appears to be the correct one. I do not see on what ground a distinction can be made between cars and other structures. The same question arises in each case, whether the structure be a car, dwelling-house or building of any kind, to wit, what arrangement of apartments, &c., will be most convenient, and utilize to the best advantage the space at command?

It may be said that in the case of railroad cars this must be done within certain fixed limitations. This is also true with all structures, though it may not be so immediately apparent in all. Now, the arrangement of the rooms in a house has always been held to be a matter of judgment and taste. No higher order of talent appears to be required for the arrangement of apartments and other well-known conveniences in a railroad car, such, for instance, as is shown in this application.

The grant of patents for improvements of this class can operate only as an unwarrantable and vexatious restriction upon architects and builders in the practice of their respective vocations. It is not believed that the spirit of our patent system encourages the imposition of such restrictions. While great liberality should be shown in the grant of patents for improvements which manifestly tend to promote science, art, or manufactures, it is also important that a wise discretion should be exercised to prevent the placing of unnecessary restrictions upon the artisans in a legitimate use of their mechanical skill and ingenuity. Due regard must be had for the rights of all parties in the consideration of questions affecting the right to a patent, and that policy should be adopted which seems most favorable to the promotion of the public good. In my opinion sound policy demands the refusal of all patents for subject-matter such as is contained in the present application.

This seems also to be the opinion of Commissioner Leggett, as intimated in his decision of August 26, 1872, refusing a patent to John Gates for an alleged improvement in steamboats, and the decision of this case is understood to accord with the spirit of the opinion therein announced.

The decision of the Examiners-in-Chief is affirmed.

KENDALL & TRESTED vs. SCRYMGEOUR.

Interference.

APPEAL FROM THE BOARD OF EXAMINERS-IN-CHIEF IN THE MATTER OF THE INTERFERENCE BETWEEN THE APPLICATION OF KENDALL AND TRESTED, AND THE PATENT OF DAVID SCRYMGEOUR, GRANTED DECEMBER 5, 1871, FOR IMPROVEMENT IN HATS AND BONNETS.

(Decided December 27, 1872.)

A case where an exhibit, relied upon by one party to prove an invention as having been made at a certain previous time, fails to show the feature of the invention as specifically described in and limited by the claims of each of the parties litigant. A hat made of a piece of shaped fabric covered with a film of pulp and then pressed so that the materials are intimately united, differs essentially from one in which a piece of woven fabric has been placed as a lining within a pulp hat previously formed.

THACHER, Acting Commissioner :

The invention in controversy consists of a hat or bonnet composed of paper pulp and fabric united, and in the process by which the hat or bonnet is made.

The process is as follows: A piece of light woven fabric, usually buckram, of suitable size, is saturated with an adhesive liquid, struck up by dies into an approximate form of a hat, placed on a block, COVered with a thin film of moist paper pulp, and the two are then pressed together with great power, so that the pulp and buckram become practically a single fabric.

The parties were intimately associated as employer and employé in the business of experimenting upon and making hats during the inception and development of the invention, and it appears are relatives. Their individual testimony, which is the principal evidence, is, in every important particular, conflicting. Their intimate connection, and their agreement upon some indifferent points, render it extremely difficult, from a mere reading of the affidavits, to determine in behalf of which party appears the greater probability of truth. Scrymgeour has been most diligent, for he sought and obtained a patent before Kendall and Trested made application for one. The burden of proof is, therefore, upon them. A damaging defect has been pointed out by the board in applicants' "Exhibit No. 3," upon which their proof essentially turns. This