had no legal standing in the Office. From this action petition was taken to the Commissioner.

Upon this statement of facts it must be held that the Examiner did not err and that he was without authority to act otherwise, and his decision is sustained.

On the hearing of the petition counsel moved, in effect, that the Commissioner rule that the case made up as the third renewal be considered an incomplete application. It was also urged that should applicant be compelled to file a new application he might be permitted to use certain of the papers forming a part thereof, so that his dates could be saved. While there is nothing in the record respecting these points, and decision thereon would ordinarily be withheld until formal petitions were filed, it is thought best to save further delay by herein announcing that the application, though received and acted upon even on the merits under the practice then prevailing, cannot now, under the Secretary's decision, be further prosecuted; and this, not because of deficiencies in form, but because inherently it is a case, irrespective of the papers which compose it, which, once forfeited and once renewed, cannot again be restored to life.

In the other aspect of this case-that presented in the oral requests that the oath, petition, and first fee of the last renewal case may be treated as the beginnings of a wholly new and independent case; that the oath and petition may be removed from the old file-wrapper and placed in a new one, and that the applicant may complete such case as of the 3d of April, 1894, the date when they were filed, by presenting a new specification-other obstacles arise which appear to be insurmountable. It is obvious that the Office is asked to effect through forms of procedure a tacit evasion of the Secretary's decision; but apart from this the request cannot be granted.

Under the well-known practice and the rulings of Commissioners, whenever requests have been made that papers may be transferred or removed from one file to another, it has been uniformly held that every application must be kept intact, and that each paper which forms a link in its history must remain in the file-wrapper. Only so can it be possible to escape inextricable confusion. My attention has been called to no case in which the Commissioner has permitted such withdrawals or transfers of papers, and a practice which has been so uniformly concurred in by my predecessors should not be disturbed unless grave doubt of its wisdom exists.

In ex parte Deering (32 MS. Dec., 52, four cases) the following statement appears in the decision of Mr. Commissioner Montgomery, in a case where request was made that papers belonging to a forfeited application might be used in making a renewal application, the latter being filed more than two years after the date of forfeiture:

The naked question which is presented for consideration is the following: An applicant for patent prosecutes his application to completion. It is allowed. The final fee is not paid, and it becomes forfeited. A year and a half transpires. The applica

tion is barred by the statute, and cannot be renewed. More than two years therefore have elapsed since the case was allowed, and applicant can then only file a new application. Shall he be permitted to impair the integrity of the former case-to take a part or all of the files for the purpose of using them in such new case'

Order No. 267 (32 O. G., 139) declared that

the application and all its accompaniments as they reach the Office should be preserved in all their integrity. no portion or part of the original application should be removed from the files.

In ex parte Ayres (C. D., 1890, 103; 51 O. G., 1944) the Commissioner refused to permit a sheet of the drawings belonging to an application, which had been stricken from the files because it had been signed in blank, to be used in a new application subsequently filed by the same applicant, and in that decision I find the following language referring to another request, which had been also denied:

It is contrary to the long-established practice of the Office to permit any part of the original record of an application to be withdrawn or transferred to another application.

In all cases where the invention itself has not been abandoned and has not gone into public use in this country for more than two years a wholly new application may properly be presented, and in such case, whether the application may relate back to another case or to a renewal thereof, so as to become for some purposes one continuous proceeding, need not now be considered.

It is clear that under the decision of the Secretary the applicant's requests, as well as those presented orally and treated herein as though formally presented as the request regularly embodied in the record that the Examiner be directed to act upon the case, must be and they are denied.

REDUCTION TO PRACTICE BY ONE-BURDEN OF PROOF. K filed his application before M and the reduction to practice of the invention claimed by both was under the direction of K exclusively. "He is now in the position of a defendant in possession. The burden of proof is upon his opponent to show, not only that he at some time had the idea, but that he had it first, and also that this idea, once exclusively his, was actually communicated to Kingsley; otherwise he can take no benefit from the reduction to practice." (Citing Soley v. Hebbard, C. A., D. C., Jan. 7, 1895; post, -; 70 O. G., 921.) 2. SAME-MEASURE OF PROOF.

In such a case, where the reduction to practice by one of two associated inventors has put him in the position of a defendant in possession and placed the burden of proof upon his opponent, "It will not do merely to raise a doubt upon this point. There must be a reasonable preponderance of evidence in order to overcome the presumption of right arising from the state of one in possession." (Id.)

M and K were associated in the production and introduction of locomotiveboiler furnaces, M inventing and filing several applications and K promoting M's inventions, recognizing M as the inventor and paying expenses of applica tions, patents, and experiments. The reduction to practice of the device finally found practicable was under K's direction exclusively. It was shown that he had made valuable suggestions, which had been adopted, and he filed his appli cation for a patent first. M failed to prove a communication of the invention by him to K directly or indirectly. Held that K was the inventor.

APPEAL from Examiners-in-Chief.

LOCOMOTIVE-BOILER FURNACE.

Application of John Milton filed April 29, 1893, No. 472,655. Application of Albert F. Kingsley filed April 1, 1893, No. 468,700.

Messrs. W. W. Dudley & Co. and Mr. W. O. McIntire for Milton.
Mr. Marcellus Bailey for Kingsley.

SEYMOUR, Commissioner:

This is an appeal taken by Milton from the decision of the Examinersin-Chief awarding priority to Kingsley on the following issues:

1. In a boiler-furnace, the combination with the fire-box and flues of a grating in proximity to and extending over the grate-surface and between it and the flues, such grating being composed of perforated fire-clay conduits, through the spaces between which the products of combustion must pass, and water-pipes in communication with the water-space of the boiler, supporting and holding in place the fire-clay conduits, but having no rigid connection therewith.

2. In a boiler-furnace a grating comprising a plurality of water-pipes arranged in pairs and perforated air-pipes composed of refractory material supported and held upon the pairs of water-pipes.

3. In a boiler-furnace, a grating composed of pairs of parallel water-pipes extending across the interior of the fire-box and communicating with the water-space of the boiler combined with air-conduits formed of jointed sections of fire-clay pipes having lateral jet-holes and seats on their lower sides for the water-pipes, said airconduits extending down between the water-pipes of each pair, and air-feeding pipes having funnels at their front ends and communicating with the air-conduits in the fire-box.

The invention in question was a development through inferior forms. As early as July 6, 1892, Milton had in mind definite means for separating the combustion-chamber of a furnace into an upper and a lower compartment by an open-work partition of refractory and heat-retaining material, so that the unconsumed gases from the lower grate should pass through a highly-heated zone and be consumed. For this, on that date, he filed an application for a patent, Serial No. 459,180. He had before that tried this device in Alexandria, and, observing its operation through a test-door above the partition, discovered that when open the ingress of air through the test-door aided combustion in the upper chamber. By September 16, 1892, he had a definite conception of a further development in combustion-chambers, by which air was admitted and commingled with the gases in the upper compartment through air

pipes resting in channels in the water-guards, the latter protecting the air-delivery grating from the intense heat generated by the fire-box. For this he filed application, Serial No. 446,105, on the last-mentioned date, which matured into Patent No. 506,128, dated October 3, 1893. This he did not test. On November 2, 1892, he had the conception of a different means for introducing the air-viz., through perforated airpipes surrounded by inclosing sections formed of a skeleton or rigid metal section and a body surrounding such skeleton section formed of fire-clay or some other refractory substance. By November 11, 1892, he had in mind perforated air-pipes with subjacent water-guards, each of the latter formed as a seamless tube having a trough or bed on its upper side to receive the air-pipe. By January 4, 1893, he had the conception of perforated air-pipes surrounded by jackets of refractory material and resting on water-pipes. All these related to combustionchambers in furnaces and are kindred conceptions.

Such appears to be the progress of ideas in Milton's mind, irrespective of the prior art as shown in patents and publications.

On October 8, 1892, Milton made a contract with Kingsley for the promotion of the Milton inventions, Kingsley to furnish the money and Milton to contribute his ideas, and this contract was regarded as in force by both parties until after the 1st of April, 1893, beyond which date it is not necessary to follow it. Kingsley contributed various sums of money and incurred expense pursuant to the contract, and in interviews with Milton made suggestions looking to the better development of the various devices, some of which, like the use of cast-iron for the airpipe, its U shape, its location upon the water-pipe, the open side down, and the use of a perforated diaphragm of clay, were accepted by Milton as valuable inventive suggestions.

About the 24th day of October, 1892, arrangements began for a test of these devices in some form upon an engine of the Baltimore & Ohio Railroad Company, and as actually constructed the device consisted of a number of water-pipes-say, five-each supporting a crescent-shaped air-pipe of cast-iron, the air taken through funnels under the running. boards and distributed from the U-shaped cast-iron pipe through side perforations. This device did not closely resemble any of Milton's applications or patents and contained Kingsley's suggestion of the U-shaped cast-iron air-pipe. The test proved successful in the consuming of smoke and the saving of fuel, but fell short in that the apparatus was not durable and was poorly connected.

The engine made its first run from Baltimore to Washington on Feb. ruary 13, 1893, and its second run the next day, from which the foregoing conclusions were apparent.

The invention described in these issues differs from all that is contained in Milton's applications thus far considered, excluding his application in interference, aud differs from all that Milton and Kingsley, or either of them, had up to this time reduced to tests, and the parts of the record heretofore recited have been reviewed at length in order to

find, (for it must be found,) first, that neither Kingsley nor Milton had the precise invention of the issues at the time stated in their preliminary statements nor prior to the test of engine No. 810 on the 13th day of February, 1893, and, second, to differentiate their first test from the true subject-matter of this contention.

The precise invention of the issues had its historical antecedents in the conceptions of both these men. So, also, in the prior art much is found that narrows the invention. In Clark's patent, No. 385,444, of July 3, 1888, cited to both these applicants as a reference, there are found sectional air-pipes of fire-clay or other suitable material, which will not readily be affected by heat, mounted upon a single water-pipe connected with the water-space around the fire-box, the fire-clay sections perforated at their sides disposed on two sides of the fire-box, yet not constituting a partition separating the fire-box into upper and lower compartments, and supplied with air from the front of the boiler through two of the smoke-flues; and partitions are not new. The subject-matter now to be considered is a grating comprising a plurality of water-pipes arranged in pairs and perforated air-pipes composed of refractory material supported and held upon the pairs of water-pipes, and is, so far as appears, specifically new and constitutes, apparently, a most valuable invention.

Some time between February 13, 1893, and the 1st day of April, 1893, when Kingsley filed his application for a patent, it had its origin either in the mind of Kingsley or of Milton, possibly in each independently. It is certain that it was embodied in another engine-No. 805-under the immediate direction of Kingsley. In that engine the water-pipes were connected direct through the walls of the furnace in order to get a better circulation of water. Their position was somewhat changed and fire-clay pipes were used to distribute the air, which consisted of sections of fire-clay in place of the iron pipes employed in engine No. 810, and which were saddled on water-pipes arranged in pairs. Air was delivered from the front of the engine through three flues directly into fire-clay pipes, and thence out through the side perforations. They were made from an end view of the fire-clay pipes and water-pipes given to Ebenezer T. White, master mechanic of the first division of the railroad, by Kingsley. The test with this engine was first made on or about April 24, 1893.

Such was the embodiment of the invention, and it now remains to consider its origin. As an intellectual conception it first appears unmistakably in this record in a reference in Odell's letter to Dudley of March 31, 1893, in which the trouble with the first test-the iron pipe carrying nothing but cold air and burning off through the intense heat-is explained. The letter continues:

It is now proposed to carry the cold air in by means of a fire-clay pipe.

No communication of this idea from Milton to Odell is shown or contended for.