the specification to indicate that it is, and, from its similarity to other machines of the same general construction, the contrary is presumed. In other words, the article is not necessarily the result or product of the action of the machine. The two inventions are entirely dissimilar, the one being an improvement in drying-machines, and the other an improved article, which may be made in numerous ways. The case is clearly distinguishable from that of a die and its product, for in such case the one is necessarily produced by the other, and follows as the result of its operation. Where an improvement has been effected in one of a class of machines adapted for general use it cannot be included in the same application with an article simply because it may be made by the use of such devices. For instance, a person making an improvement in planing-machines or steam-hammers would not be entitled to come in with an application describing and claiming all articles that might be fashioned or made therewith. No unity of invention exists in such a case. Each thought is independent. The machine is merely the agent employed in constructing or giving shape to the article. The machine might be patentable, and the article not, and vice versa. The classification of the Office recognizes a difference in this matter, which is another consideration why a division should be insisted upon. The decision of the Examiner is affirmed. MERRILL AND MERRILL vs. GLIDDEN. Interference. O. G., vol. xi, p. 196. APPEAL FROM THE DECISION OF THE BOARD OF EXAMINERS-IN-CHIEF IN THE MATTER OF THE INTERFERENCE BETWEEN THE APPLICATION FOR THE REISSUE OF PATENT NO. 155,538, OF SEPTEMBER 29, 1874, FILED BY LUTHER AND JOHN C. MERRILL, OCTOBER 19, 1875, AND THE REISSUED PATENT granted to JOSEPH F. GLIDDEN, FEBRUARY 8, 1876, OF ORIGINAL PATENT NO. 150,683, GRANTED MAY 12, 1874, FOR "IMPROVEMENT IN WIRE FENCES.”—Decided January 18, 1877. Fraud is never to be presumed, but must be strictly proved, and particularly is this the case when record evidence is sought to be impeached. The rule confining the parties in their proofs to the dates set up in the preliminary statement is specially applicable where the departure is made under suspicious circumstances. Obtaining a patent for an invention is presumptive evidence that the party has not abandoned the same. MASON, FENWICK & LAWRENCE for Merrill and Merrill. GILMORE, SMITH & Co. for Glidden. DOOLITTLE, Acting Commissioner: It may as well be stated at the outset that the allegations of fraud on the part of Glidden in obtaining his reissue patent, made by the Board in their decision, are not concurred in by me. It is a well-known rule of evidence that fraud is never to be presumed, but must be strictly proved, and particularly is this the case where record-evidence is sought to be impeached. Such testimony as has been introduced in this case to show that Glidden's model, upon which his reissued patent is based, is not in the same condition as when originally filed, cannot be considered for a moment as sufficient to establish the fact, and would not overcome the prima-facie integrity of the records of this Office. The subject-matter involved in this interference is In combination with a fence-wire a barb formed of two short pieces of pointed wire secured upon the fence-wire by coiling between their ends, forming four points, which are extended in different directions. In their preliminary statement, Merrill and Merrill say— Our first conception of a four-point barb for wire fences was as early as November 1, 1873, and as early as January 1, 1874, we made a perfect model according to the above description. In their testimony, which consists almost wholly of the testimony of the Merrills, they allege that they had some of the four-pointed barbs as early as November 1, 1873. This evidence I regard as being at vari: ance with the preliminary statement, under which they are restricted, by their own admissions, to January 1, 1874, as to date of their first model. There are very strong reasons why the rule confining the parties in their proofs to the dates set up in their preliminary statements should be adhered to in this particular case. They do not produce the barbs said to have been in their possession in November, nor the testimony of any disinterested party, as to their existence. This, taken in connection with the fact that it became very material for them to establish such a date after seeing Glidden's preliminary statement, shows that such evidence, even if admitted, would be of very little weight. They testify to have had a conception of the idea at that date, and to have made the model which fully exhibits the invention in January, 1874. In the fall of 1874 they commenced the manufacture and sale of this article. The preliminary statement filed by Glidden recites that he conceived the idea of the invention in the month of October, 1873, and between the 28th day of October and the 10th or 15th of November, 1873, put it in model form. He testifies to these facts upon his examination, and is corroborated by others who saw the exhibits which are introduced, about the middle of December, 1873. The exhibits show the invention in its full-sized operative form, and from Glidden having obtained a patent thereon, we are to presume that he did not abandon the invention. If we give credit to Glidden's testimony, and I see no reason why it should be repudiated, he was not only first to conceive, but also to reduce the invention to an operative form, which is sufficient to sustain his claim to the invention. The decision of the Board is reversed. WICKS AND WYMAN vs. KNOWLES. Interlocutory Motion. O. G., vol. xi, p. 196. APPEAL FROM THE DECISION OF THE PRIMARY EXAMINER IN THE MATTER OF THE INTERFERENCE BE. TWEEN THE APPLICATION OF JOSEPH F. WICKS AND HORACE WYMAN, AND THE PATENT OF J. KNOWLES, NO. 134,992, GRANTED JANUARY 21, 1873, FOR AN "IMPROVEMENT IN LOOMS."—Decided January 20, 1877. Ex parte affidavits cannot be received to establish the statutory. bar of two years' public use. If, in the course of the interference proceeding, either party in taking testimony relating to the history of his invention should introduce proof relevant to the issue of priority, and which, at the same time, shows a statutory bar as against either party, such testimony will be taken notice of and considered in the manner prescribed in Rule 59. W. C. WOOD for Wicks. CROSBY & GREGORY for Wyman. POLLOK & BAILEY for Knowles. DOOLITTLE, Acting Commissioner: This is an appeal from the decision of the Primary Examiner refusing to dissolve the interference upon a motion to that effect based upon the alleged fact of public use and sale for more than two years prior to the filing of the application of Wyman. This motion was supported by exparte affidavits submitted by Knowles, the patentee. They set forth the fact that the invention in controversy had been in use and on sale for the time mentioned. These affidavits were replied to by an affidavit of Wyman, one of the applicants, who avers that no such use has been made with his knowledge or consent for the time mentioned. It was argued upon the present hearing of this motion before me that the present statute omitted the words "knowledge or consent," and it was unnecessary to show such fact on the part of the inventor. Without discussing the latter point at this stage of the case, I must refuse the motion on the ground that the ex-parte affidavits offered are not sufficient evidence to convince me of the alleged facts of public use and sale of the completed and perfected invention for more than two years prior to the filing of the application of Wyman, in view, especially, of the denial upon the part of the applicant. If the alleged facts had been developed in a proper proceeding in which opportunity had been offered for examination and cross-examination of witnesses, and of taking rebutting testimony, it would then also be proper to consider the legal questions bearing upon the testimony adduced. The interference must proceed; and if, in the course of that proceed. ing, either party, in taking testimony relating to the history of his invention, should introduce proof relevant to the issue of priority, and which, at the same time, shows a statutory bar as against either party, such testimony will be taken notice of and considered in the manner prescribed by Office Rule 59. It should be understood, as set forth in the case of Smith vs. Perry et al. (9 OFFICIAL GAZETTE, 688), that the testimony here alluded to must have some bearing upon the issue of priority, so that it could have been regularly admitted in an interference proceeding. The decision of the Examiner is affirmed and the motion denied. C. F. DIETERICH. Interlocutory Appeal. O. G., vol. xi, p. 195. APPEAL FROM THE DECISION OF THE PRIMARY EXAMINER IN THE MATTER OF THE APPLICATION OF CHARLES F. DIETERICH, FILED NOVEMBER 22, 1876, FOR "IMPROVEMENT IN MACHINES FOR CHARGING GAS-RETORTS.”—Decided January 23, 1877. Separate and distinct inventions that do not co-operate or depend upon each other for their operation cannot be included in one application. The retort-charging mechanism, the coke-removing mechanism, and the coke-transporting hopper, although capable of being employed together in the manufacture of gas, cannot for that reason alone, there being no patentable combination between them, be included in the same application. G. H. & W. T. HOWARD, attorneys. DOOLITTLE, Acting Commissioner: Applicant describes his invention as relating— First, to a car or wheeled vehicle, to be used in the transportation of coal from the coal-shed, or place where the coal is stored, to the retort-house, in which the retortcharging mechanism is located; secondly, to the retort-charging machine, used in connection with the transportation-car aforesaid; and, thirdly, to the mechanism or devices for removing the coke from the retorts to a coke-hopper of novel construction, in which hopper it is transported to the coke-yard. The Examiner requires applicant to divide his case, alleging that three separate and distinct inventions have been included in this application: first, the devices used in transporting the coal and charging the retort; secondly, the devices for removing the coke; and, thirdly, the alleged novel construction of the coke-hopper. In this, I think he is correct. It is evident, from an examination of the alleged inventions, that while, as was argued at the hearing, they may contribute to the formation of a novel and valuable system, yet it is nevertheless a fact that they do not co-operate in a patentable sense, but are a mere aggregation, each part performing its separate function, and the result of their conjoint action being the sum of their separate operations, without being in any manner modified by such use. Each part would operate in exactly the same manner and with the same results were the others not in existence, and it is no evidence of unity of invention that several distinct and improved machines, when employed in manufacturing a certain article, can be used to greater advantage than cruder and less perfect devices which had previously been employed for the same purpose. The retort-charging mechanism is entirely independent of that for removing the coke, and the structure of the coke-hopper in no manner modifies or controls the operation of the latter. The division of the application required by the Examiner is, therefore, thought to be proper, and his decision is affirmed. ALFRED MILLER vs. PURCHES MILES. Interference. O. G., vol. xi, p. 197. APPEAL FROM THE DECISION OF THE BOARD OF EXAMINERS-IN-CHIEF IN THE MATTER OF THE INTERFERENCE Priority awarded the party who made and applied the invention before his opponent entered the field as a competitor. Testimony as to public use taken in an interference in no manner connected with or ancillary to the matter at issue, but relating to the acts of parties not in interest, is not competent evidence and cannot be received. The issue in an interference is priority of invention, to which the question of origi. nality is sometimes germane. Testimony in a cause must be confined to the point in issue, and all not bearing directly or indirectly thereon is subject to be stricken out. When public use is brought home to the parties in the development of the history of the invention, it may be taken notice of, and form the basis of future action. The case of Smith vs. Perry et al. (9 OFFICIAL GAZETTE, 688), considered and approved. LEGGETT & LEGGETT for Miller. L. W. SERRELL for Miles. DOOLITTLE, Acting Commissioner: Miller's first claim, the one in issue, is as follows: A bail-ear, having two lateral prongs, and formed of a single piece of metal, the upper prong and the body of the ear being directly connected by a single loop, all constructed substantially as and for the purpose set forth. Miles, in his patent, shows a bail-ear differing somewhat in form from Miller's, but subservient, I am inclined to think, to the broad claim above quoted, and, therefore, embracing the subject-matter in issue. The evidence shows that Miller had constructed and applied several of these ears as early as December, 1872, filed a caveat August 23, 1873, and his application December 27, 1873, upon which a patent was granted. The manufacture of the ears was commenced in June, 1873, and has since continued. The earliest date claimed or proved for Miles is March, 1873, when he made specimens of the ears shown in his patent, and commenced manufacturing the same some time in October in the same year. |