by hydraulic pressure supplied from pressure pump 2a to a main loading cylinder 26, which contains a piston or ram. A manually operable valve 2g is disposed in the pipe which carries the fluid from the pressure pump 2a to the main loading cylinder 26. By this valve the load applied to the specimen is controlled. Figure 2 shows the front elevation

of the combination of members which comprise the apparatus, to be used in connection with the testing machine, for which Blanks claims a right to patent. The relation of this apparatus to the testing machine itself can be seen in Figure 1 just above the control valve 2g. In Figure 2 hand 3—the stress indicating hand of the claims-moves clockwise across the graduations of the dial in response to the load applied, through the manually operable valve 2g, to the specimen 1 by the testing machine. The movement of this hand thus affords, in con

nection with the graduations on the dial, a visual indication of the load applied or being applied to the specimen. The hand marked 13the auxiliary or rate of load hand of the claims, hereafter referred to for convenience as the pacer hand-is, by means independent of that which carries the stress indicating hand 3, carried in superimposed and visual relation with the latter, and is capable of being caused, by means of an adjustable driving mechanism, to cross in clockwise direction each of the graduations on the dial at a predetermined rate of speed commensurable with the rate of change at which each unit of a load, represented by the graduations on the dial, is desired to be applied to the specimen. The upper part of Figure 3 shows a vertical crosssection of the apparatus which is seen in front elevation in Figure 2. It discloses that the two hands, 13 and 3, although separately carried, are set upon the same axis.

In using an hydraulic testing machine equipped with the Blanks apparatus the pacer hand 13 is so regulated, by means of a watt-hour meter shown as 19 in the lower part of Figure 3, that it will cross the

FIGURE 3

load indicating graduations of the dial at a rate of speed commensurable with the desired rate of load change. Through manual operation of valve 2g, hand 3, the load registering hand, is caused to move across the graduations of the dial in register, i. e., coincidentally, with pacer hand 13, with the result that the load is applied to the specimen at the desired predetermined rate of change. For example, if it is desired to apply a 20,000-pound load in five minutes, pacer hand 13 is set so that it will cover the first two graduations on the dial in that period of time, and then load hand 3 is caused, by application of the load through manually operable valve 2g, to keep pace with hand 13, so

that when both have reached the 20,000 mark in five minutes time the load will have been applied to the full extent of 20,000 pounds during that time. Also the pacer hand may be set so as to reflect predetermined variations in the time within which a given load will be applied, and the load hand, through manual operation of valve 2g, caused to keep pace with the pacer hand in these variations.

The Commissioner contends and the trial court found that Blanks' apparatus is not inventive in view of the disclosures of a trade circular alleged to have been published and distributed in Europe by Ernst Krause & Company of Vienna, Austria, more than two years prior to the date of Blanks' application. The Commissioner's contention is predicated upon Rev. Stat. § 4886 (1875), 35 U. S. C. § 31 (1934), which, as it stood amended at that date, is set out in the margin,1 and upon conclusions which the Commissioner asserts plainly follow from examination of Illustration 1 of the Krause circular in the light of certain passages of the text thereof. The illustration and text passages upon which the Commissioner relies are set out below:

2

Hydraulic Universal-Material Testing Machine-Model MP 4

For Tension, Compression, Buckling, Bending, Folding, Shearing, Punching and Brinell Tests, Chain and Spring Tests, Creep Tests, etc.

Maximum Loading-40,000 Kg.

Packing Free, Ground Piston, Shock Absorber

Load Indication by Pendulum Scale

Testing Speed Adjustable, in accordance with regulations of the German Railroad.

Outstanding Features

No foundation required; small set-up space required; easy to transport; no appearance of free forces; simple operation by handpump; electric motor and storage battery; clear vision of load tests by pendulum scale with three (3) test

"Any person who has invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvements thereof, or who has invented or discovered and asexually reproduced any distinct and new variety of plant, other than a tuber-propagated plant, not known or used by others in this country, before his invention or discovery thereof, and not patented or described in any printed publication in this or any foreign country, before his invention or discovery thereof, or more than two years prior to his application, and not in public use or on sale in this country for more than two years prior to his application, unless the same is proved to have been abandoned, may, upon payment of the fees required by law, and other proceeding had, obtain a patent therefor. (R. S. § 4886; Mar. 3, 1897, c. 391, § 1, 29 Stat. 692; May 23, 1930, c. 312, § 1, 46 Stat. 876.)"

The text of the circular was of course in the foreign vernacular. A translation offered in evidence by the appellant at the trial in the district court was received without objection and no question as to its correctness is raised in the case.

ranges; only one operator required; high efficiency (40 tons-88,184 lbs.); great versatility; finest regulation of testing speed.

Our Hydraulic Universal-Material and Tensile Testing Machine Model MP 4 is according to the principle of the hydraulic press constructed with a packing free piston. The load definition is established through pendulum scales. The machine has a capacity for tension and compression tests as high as 40,000 Kg. (88,184 lbs.) and consists essentially of a pump, a press cylinder; a pendulum scale for direct reading of loading and power transmitting mechanism.

The press cylinder is made of high grade, especially fine grain cast steel. Press piston and cylinder have a ground finish. The pistons travel freely with only an oil film between piston and cylinder wall, thus producing only liquid friction. This friction value is, at all pressures, constant and disappearingly small, and is already balanced when engine is gauged at our Works.

The pump body is made of solid steel. As a pressure liquid, a good resin and acid-free mineral oil is used.

564904-44-4

Power reading: A pendulum scale is used for reading of expended power. This pendulum scale has three (3) test ranged [sic] of 1 [sic] to 4,000 Kg. (8,818.4 lbs.); 0 to 12,000 Kg. (2,645.5 lbs.) and 0 to 40,000 Kg. (88,184 lbs.) The pendulum scale is not subjected to any wear and contains no parts endangered to overstrain, thus insuring correct power reading after longest time of operation.

For measuring of a desired testing speed (in accordance with acceptance regulations of the German Railroad), a time clock is used which is built into the pendulum scale. The hand of the clock is arranged concentric with the hands of the scale.

The Contention of the Commissioner presents three questions: (1) Is the Krause circular a "printed publication" within the meaning of Rev. Stat. § 4886 (1875), 35 U. S. C. § 31 (1934)? (2) Was it sufficiently proved that the circular had been published over two years prior to the date of Blanks' application? (3) Do the disclosures of the circular negative invention in Blanks' apparatus? The Commissioner urges that the answer to each of these questions is in the affirmative. It is to be noted, however, that if the answer to the third question is in the negative, the other two questions become immaterial. Moreover, the Commissioner conceded at the trial that the Krause circular is the only reference upon which the Patent Office relies to defeat invention and that if the circular does not disclose Blanks' apparatus the latter is inventive. The Commissioner also conceded utility. We set out in the margin the colloquy between counsel for the Commissioner and for the appellant in which the concessions were made.3

The argument of the Commissioner in support of the contention that the Krause circular shows Blanks' apparatus is cast in the following terms:

The COURT [BAILEY, J.]. What is the purpose of this testimony? Does the Patent Office raise any question as to the utility of this apparatus?

Mr. HATHAWAY [counsel for the appellants]. It answers the question whether invention is involved. If a problem has been known for more than fifty years, as this article shows, and has been struggled with by men engaged in this work, and this applicant has found a solution of that problem, we think it is very important.

Mr. COCHRAN [counsel for the Commissioner]. I do not think the Patent Office questions that it is important in the testing of materials that the load be applied at a uniform and proper rate. There is no question about that.

The COURT. If there is no question about that, we are only wasting time.

Mr. COCHRAN. The only question is: Does the Krause publication show it and was that published? I think that is the real question.

The COURT. I do not want to take so much time in connection with what it seems to me is not important in the decision of this case.

Mr. EDWARDS [counsel for the appellants]. I think we want to get in evidence at least enough to show that the problem has existed for a long time and has not been met. That is as far as I want to go-and that this invention does solve it.

Mr. COCHRAN. We are agreed that it does solve it.

The COURT. I do not think there is any question in the Patent Office that it does not solve it.

Mr. EDWARDS. Then the only thing we want to show is that the problem has existed for a long time and that during that time it has not been solved, and that others have attempted to solve it.

The COURT. I do not understand that the Patent Office claims any anticipation other than this Krause leaflet.