HARRINGTON BARKER.

Harrington Barker was born in Cambridge, Massachusetts, on March 8, 1875. He attended the graded schools of that city, and graduated from the Cambridge Manual Training School in 1894. He then entered the Massachusetts Institute of Technology, winning a scholarship at the close of the first year, and graduating therefrom in June, 1898, with the degree of Bachelor of Science in Mechanical and Mill Engineering.

For about a year after graduation he was asscoiated with the Rawson and Morrison Manufacturing Co., of Cambridge, in their drafting and designing room, engaged chiefly in the design of coal handling and hoisting machinery. He left there in the Spring of 1899 to take a position at the Edison Laboratories at West Orange, N. J., shortly after which (in June, 1899), he was appointed to the position of Fourth Assistant Examiner, in the Patent Office, and assigned to Division 35, then under the late Commissioner Moore. In that Division he examined Fluid Pressure Regulators, Photography, Card, Picture, and Sign Exhibifing, Games and Toys, Garment Supporters, and Buckles, Buttons, and Clasps. In 1909 he was assigned to Division 13, under Principal Examiner Nixon, where for eleven years he had charge of Gear Cutting, Metal Rolling, Welding, Button Making, and a portion of Metal Working. It was during this period that the somewhat revolutionary strides in the machines for the production of curved-tooth bevel gears were taken, and the earlier machines for the automatic cutting of bevel gears developed to a high degree of perfection. This development was particularly marked in connection. with the use of rotary cutters and hobs in bevel gear work, and in the planing of curved-tooth bevel gears with a single reciprocating cutter. The extended use in the automobile field of these highly desirable bevel gears, old in the art but impracticable of commercial production, was made possible by the development of these machines.

In September, 1920, Mr. Barker was appointed Principal Examiner and given charge of Division 47, which assignment he now holds. In this Division he has under him the classes of Brakes, Fluid Pressure Brake and Analogous Systems, Clutches and Power-Stop Control, Elevators, Spring Devices, and Motors.

MAY EXAMINERS IN CHIEF AVOID DECIDING AN APPEAL?

By JOHN F. ROBB.

A question that has arisen several times in my practice, and I believe, of general interest to the profession, may merit some discussion in the Journal.

For example in a recent case, now pending before the Court of Appeals of the District of Columbia, the applicant for patent petitioned the Commissioner on a question of law upon which his case stands or falls. This petition was taken direct and prior to an appeal required later in order to carry the point to the Court. In the course of the appeals in the Patent Office, upon that to the Examiners in Chief, a decision was rendered, the gist of which was as follows: "It appears from the record that the same contention was made before the Commissioner in the petition upon which the decision from which we have quoted is based. Since it is our view that the precise question upon which this appeal is predicated, has been ruled upon by the Commissioner and adversely to appellant, we have no option but to affirm the action of the Examiner in rejecting the appealed claims."

It has always been my view that on the payment of a fee on appeal to the Examiners in Chief, the applicant is entitled to an opinion of the Board, irrespective entirely of any opinion which the Commissioner of Patents himself may have rendered. At least in one case I took this position in a hearing conducted before the above Tribu

nal, without any showing of special authority, but the point was decided adversely. It is quite evident that the Examiners in Chief are taking the position that the Board's decision must always be subordinated to the Commissioner's decision, and as others may be confronted with this contention, it becomes important to the profession, that if possible, the rights and obligations of the Board to render its own decision be established.

Section 482 of the Revised Statutes, clearly establishes to my mind in the Examiners in Chief, the duty "to revise and determine upon the validity of the adverse decisions of Examiners upon applications for patent, etc."

It is my position that the Statute creating the Board as an Appellate Tribunal makes it mandatory upon the Board itself to determine the validity of adverse decisions of Examiners. There is nothing in the Statute which permits the Board in its discretion to waive the above described duty.

The mere fact that the Commissioner has passed upon a particular question does not chain or circumscribe the Examiners in Chief to the same conclusion.

This is a highly important matter for the Board as a general thing is composed of experts especially qualified to pass on questions presented to it and its decisions may frequently be different from those reached by the Commissioner. Moreover, as the Board is composed of three men, on hearings, if its decision is contrary to that of the Commissioner, this matter is of special consideration to the Court of Appeals on the final appeal. Where in a case the Board, as above quoted, side-steps the decision which it is under duty to render it is believed that the applicant goes to the Court of Appeals without the burden of unanimous decisions in the Patent Office against him.

Owing to the provisions of the Staute itself, a mandamus would doubtless lie to compel a decision of the Commissioner. It is true that the Board might render a decision favorable to an applicant after the Commissioner has decided a point adversely to him. It is quite con

ceivable on the theory of comity, that the Commissioner, if he is a broadminded man, might feel that a decision rendered by him on a petition, and decided by the Board contra-wise on the same question, may be erroneous and would be glad to have the views of the Examiners in Chief. He might be constrained to reverse himself.

My experience with Federal Judges has been that they are exceedingly broadminded men who upon presentation of reasonable grounds are glad to find themselves wrong upon occasion and set a case right by a proper decision.

I recognize that the Commissioner, after the adverse decision of the Board, may properly adhere to his position originally taken on a petition, but if he does so, the applicant is materially advantaged by the rendition of an opinion by the Examiners in Chief on the merits of the controversy, and to this, in my belief, the applicant is legally entitled.

Editor's note.-From the organization of the Patent Office, the decisions and rulings of its official head, the Commissioner, on all matters of law and fact investigated and determined by him have been deemed binding upon all tribunals within the Bureau until modified by him or his successor. It is believed that any other procedure would result in great confusion and delay. If an applicant seeks and obtains, upon petition, a ruling of the Commissioner upon a specific point of law or of fact, it would appear to be in the best interest of all concerned that the examiners-in-chief should follow such ruling unless evidence or argument is submitted to them which shows a state of facts different from that which was before the Commissioner. Ex parte Dalton, 392 O. G. 803, 1924 C. D. 173.

FUNDAMENTAL PRINCIPLES.

PART II.

By JAMES H. LIGHTFOOT,

Principal Examiner, Division Twenty-five,

U. S. Patent Office.

(Continued from last issue, page 599.)

And if it becomes thus necessary for the courts to construe claims and go beyond them to find the real invention in order that the patentee may be given protection for that which he really has invented, it would appear all the more important for the examiner to so examine applications as to ascertain what the real invention is and what are needless limitations, before the patent is granted, in order that the patent when issued may show upon its face what the real invention is and in order that the legal construction of the patent through and beyond the terms of improperly granted claims may be made unnecessary.

Aside from these considerations, if searches be made through and beyond the claim presented it may result in finding matter disclosed that would be of value to the public and which may form the subject-matter of patentable claims, but which would not have been found and claimed if the claims alone as drawn by applicant or solicitor had been examined, and if no search beyond the claim had been made for patentable matter.

It would appear to be quite clear, therefore, that only by a thorough search for patentable matter in applications as well as for statutory bars to the granting of patents will the grant be fair in its contractual terms and will it be made in accordance with the constitutional provision; and moreover, this full first examination of matter in and beyond the claims would doubtless render subsequent searches largely unnecessary and would necessarily expedite the final disposition of applications.