It will be evident from the illustration Figure 1 [of Krause] and the description, that the machine is for making tests of specimens under tension, compression, bending, etc. It is stated that the machine provides for the finest regulation of the testing speed and provides clear visibility of the tests on a pendulum manometer. This latter is the large gauge shown in about the center of Figure 1. It is stated * * * that the gauge gives a direct reading of the loading on the specimen. The equivalent statement is also made that the gauge gives a reading of the exerted power.

The description of the Krause machine goes on to say:

"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."

It is submitted to be obvious from this statement and from the previous description that one of the pointers shown on the gauge indicates the load and the other pointer is a clock hand for measuring the speed of testing.

The plurality of indicating numbers [members] recited in the claim [claim 1 of Blanks] are the two pointers shown on the Krause gauge. They obviously have similar paths of movement, both being pivoted for movement about a common axis, and are in relatively close relation for visible comparison. One of them is described in the Krause circular as a clock hand-i. e., a hand moving at a predetermined rate of speed. The other is described as showing the load applied to the specimen. The claim is thus clearly met.

It is also clear that the pointers of the Krause machine are in superimposed relation * * * ; that they are so supported that they may move in alinement ; and that they rotate about a common axis.

with each other

Testing the strength of materials to bear the strains to which they will be subjected in actual use in structures is of the utmost importance in the field of engineering. The safety and durability of, for example, buildings, bridges, and highways, can be assured only by ascertaining in advance the strength of the materials of which they are to be made. It is elementary that in the testing of materials it is of great importance to conduct the tests in terms of the time within which a load is applied. This was stated as early as 1887 in the Encyclopaedia Britannica (9th ed. 1887), Vol. XXII, as follows:

The ultimate strength for any one mode of stress, such as simple pull, has been found to depend on the time rate at which stress is applied; this will be noticed more fully later (§§ 28-34). * [p. 596]

28. In testing a plastic material such as wrought-iron or mild steel it is found that the behaviour of the metal depends very materially on the time rate at which stress is applied. * * [p. 598]

For a long time prior to Blanks' application-fifty years or more— the engineering art had attempted to devise machines for the testing of both light and heavy materials whereby the time rate at which a load is applied could be accurately predetermined. The efforts of the art had developed two types of materials testing machines. In one the application of the load to the specimen at a predetermined time rate was, theoretically, directly measured. Machines of this type

were the Olsen New Automatic Shot Cement Testing Machine and the Olsen Improved Constantly Applied Strain Cement Testing Machine. In the Shot Cement Testing Machine the load was applied to the specimen by means of a counterbalancing lever system. At one end of the lever was hung a weight equaling the total load to be applied; at the other was hung a receptacle filled with buckshot, also equaling in weight the total load. The buckshot were allowed to run out of the container at a uniform rate of speed governed by the size of the aperture through which they dropped. This machine was usable, however, only for small loads and material specimens and it did not operate with accuracy. In the Applied Strain Cement Testing Machine a jockey weight was, by means of an electric motor, run out a graduated scale at a predetermined time rate. Simultaneously through a hand-operated control wheel an operator attempted to apply the load uniformly by keeping a floating beam in horizontal balance. This machine, again, was not practical for large loads or specimens and was not fully effective even for small ones because of the difficulty of keeping the float balanced. If it was not kept in balance its oscillation produced inertia effects and increased load. One attempt of the prior art to predetermine the rate of application of load to specimen was by the use of an ordinary musical metronome in connection with an hydraulic machine of the first type which permitted application of the load in a manually controllable manner. The operator tried to apply the load, through the manual control, uniformly over a predetermined period of time beaten out by the metronome. If, for example, the operator desired to apply a load of 1,000 pounds in four seconds' time, he would set the metronome to beat once each second and would try manually to control the application of the load so that at the first tick 250 pounds would have been applied; at the second, 500 pounds; at the third, 750 pounds; and at the fourth, 1,000 pounds. This was unsuccessful because it required a nicer coordination of eye, ear, and hand than was possible.*

In the second type of machine the application of the load to the specimen at the predetermined time rate was indirectly measured. The immediate object of the machine was to accomplish a predetermined control of the rate of progress of a force-applying member or crosshead (as distinguished from the rate of increase of the load itself as in the first type of machine); that is to say, the force-applying

As one of the witnesses in the case (A. H. Emery) said: "The trouble is that you have got to coordinate your ear and eye to see what you are doing. If you are short on the first tick, you have got to speed up the machine a little bit by the control valves, hoping you do not overshoot on the second tick, and then slow it down again, so that it is a continuous correction and not a continuous indication that you are doing what you want to do.

It is not very easy to coordinate with your eye and ear and hand. You have got to make mental calculations all the time, to know whether you are doing what you want to do; and you will get mixed up and lost, and you will become very much lost. It is not a continuous operating device.

member was caused to move a given number of inches per unit of time. In connection with this there was a device for measuring the weight of the load. As the force-applying member advanced and applied the load to the specimen it deformed the same either by compression or extension. What such a machine directly measured was the physical extent, in a predetermined period, of the deformation of the specimen, rather than the time rate of load application. Moreover, deformation of screws and of the machine frame and slipping of the specimen in the grips between which it was held and elastic deformation of the specimen itself made such a machine only theoretically accurate in the uniform speed of advance of the force-applying member; actually there was variation therein and consequent variation in time of the application of the load. Such a machine was the T. Olsen Recording Testing Machine disclosed in Patent No. 445,476. This was a mechanical screw-type machine. Another machine of this type was the Amsler Hydraulic Pendulum Type Testing Machine described by R. G. Batson and J. H. Hyde in their treatise "Mechanical Testing" (1922). Because of its importance in the discussion of this case, we print below a picture of this machine and describe its operation. The specimen to be tested is shown at T, just underneath lower cross-head 1. The latter moves upward through the action of a ram and cylinder shown at 3. Rod 6 is one of two rods connecting crosshead 1 to upper crosshead 5. The crossheads move as a result of hydraulic pressure introduced into the cylinder. The pressure is supplied by oil pump O. The force exerted is controlled and rendered uniform by a special "over pressure" valve designated Amsler Valve in the picture. The extent of the force, i. e., the weight of the load being applied to the specimen, is indicated by a pendulum dynamometer shown at D, 5 being the pendulum and 4 the dial. One of the hands shown on the dial is a load-indicating hand which revolves across the graduations of the dial as the load is increased. The other is a maximum hand, a loose pointer which is engaged by the load hand as it rises and which remains in the highest position reached by the load hand after the latter, upon the fracture of the specimen, returns to zero. The function of the maximum hand is to indicate the maximum load applied in a test.

It is not contended that the machines (other than the one shown in the Krause circular) which we have described solved the problem of the art. It was Blanks' apparatus which, with its combined pacer and load-indicating hands, solved the problem by making possible an exact application of load to specimen at a predetermined rate. As indicated earlier in this opinion, the Commissioner concedes this and concedes also that the Blanks apparatus is a patentable advance unless anticipated by the Krause circular. This case thus reduces itself to the one question whether or not the illustration and text of the Krause

circular (which we shall assume was, as alleged, published, and distributed in Austria more than two years prior to the date of Blanks' application) sufficiently disclose a machine of Blanks' type to constitute an anticipation.

AMSLER'S 50-TON UNIVERSAL TESTING MACHINE.

[1] The consideration of a foreign publication relied upon as a reference against a claimed invention must be in the light of the law relating to such a publication. As was said in the leading case of Seymour v. Osborne, 11 Wall. 516, 555 (U. S. 1870), an infringement proceeding, the defense of invalidity of the patent in suit because described in a foreign publication is not made out unless it is shown that

the description and drawings [of the foreign publication] contain and exhibit a substantial representation of the patented improvement, in such full, clear,

and exact terms as to enable any person skilled in the art or science to which it appertains to make, construct, and practice the invention to the same practical extent as they would be enabled to do if the information was derived from a prior patent. Mere vague and general representations will not support such a defense, as the knowledge supposed to be derived from the publication must be sufficient to enable those skilled in the art to understand the nature of the invention, and to carry it into operation.

It is not competent to read into a foreign publication any information which it does not afford on its face. Badische Anilin & Soda Fabrik v. Kalle, 94 Fed. 163 (C. C. S. D. N. Y. 1899), affirmed, 104 Feb. 802 (1900); Loew Filter Co.. v. German American Filter Co., 164 Fed. 855 (C. C. A. 6th, 1908); Carson v. American Smelting and Refining Co., 4 F. (2d) 463 (C. C. A. 9th, 1925), certiorari denied, 269 U. S. 555 (1925). The disclosure of a foreign publication must be so clear that it teaches the subject matter of the patent in suit without assistance from the latter. Wisconsin Alumni R. Foundation v. Breon & Co., 85 F. (2d) 166 (C. C. A. 8th, 1936), certiorari denied, 299 U.S. 598 (1936). Moreover, as was held in Atlantic Gulf & Pacific Co. v. Wood, 288 Fed. 148, 155 (C. C. A. 5th, 1923), quoting from Cimiotti Unhairing Co., 115 Fed. 524 (C. C. D. N. Y. 1902), a case itself based upon Seymour v. Osborne.

A [foreign] document so obscure in its terminology that two conflicting theories may be deduced therefrom and supported by equally plausible arguments is too indefinite to be utilized as an anticipation.

These principles, although applied by the courts referred to in infringement suits, are equally applicable to proceedings to obtain a patent. Beckett v. Coe, 69 App. D. C. 51, 98 F. (2d) 332 (1938). That is to say, a foreign publication cannot operate to anticipate a claimed invention unless it meets these principles.

The contention of the Commissioner that the Krause circular does. disclose Blanks' device comes in sum to the following: The Krause machine is described in the circular as one for the testing of materials with finest regulation of testing speed, clear visibility of tests on a pendulum manometer, direct reading of the loading, and use of a time clock built into the pendulum scale with concentric arrangement of the hand of the clock with the hands of the scale; therefore one of the two hands on the Krause dial is a load-indicating hand like that of Blanks and the other a pacer hand like that of Blanks.

The Commissioner's conclusion that the Krause circular discloses that one of the two indicating hands of the Krause dial is a loadindicating hand is justified-by the statement in the circular that there is direct reading of the loading on a pendulum scale. But the conclusion that the circular shows that the other hand is a pacer hand functioning as the pacer hand of Blanks does is, we think, not justifiable if the circular be looked at-as it must-in the light of the