DOOLITTLE, Assistant Commissioner :

May 31, 1875, the Commissioner affirmed a decision of the Board of Examiners-in-Chief, awarding priority to Rogers upon the subject-matter embraced in his application, filed June 3, 1874. The Examiner of Interferences had also awarded priority to Rogers. Upon the decision of the Commissioner, patent No. 164,876 was issued to Rogers, assignor to himself and Thomas J. Burchfield, of Allegheny, Pa. Thereupon Gillen withdrew his claims in interference, and Patent No. 167,163 was issued to him August 31, 1875. Gillen's assignees now seek to reissue said patent, introducing the claims which were originally stricken out. It may be here stated that upon withdrawing the claims from his original application, before a patent was allowed him, Gillen notified the Office that he should prosecute the same upon a suit in equity in the United States courts, and he did commence said suit, but his attorneys, after the suit had gained some headway in the taking of testimony, learning that Gillen had withdrawn the claims upon which the suit was based, discontinued the same.

On the present application for reissue the Primary Examiner held that the matter, so far as the Office was concerned, and as between Rogers and Gillen, was res judicata; but the attorney for the assignees of Gillen insist upon a reopening, or, rather, of a renewal of the interference between Rogers and Gillen, to proceed upon the present reissue application of Gillen, and the patent granted to Rogers, on the ground that newly-discovered evidence has since been had, which should induce the Office to declare the interference now asked for.

This newly-discovered evidence consists of testimony given by Rogers in the equity proceeding commenced, as above stated, and in an affidavit by Burchfield, the assignee of Rogers. Other evidence of a similar nature is alleged to be obtainable by the parties to this motion.

Rogers's testimony does not admit of, nor give color to, the fact that he is not the first and original inventor of the subject-matter formerly in controversy; but the point now made upon it is that he does not ap pear to understand the operation of his invention as described in his patent, and that one feature thereof-viz, the air-pump-is not used by him, as is, in fact, admitted by him to be inoperative. But the airpump is not an essential part of Rogers's invention, for he claims this invention irrespective of the use of that pump. Burchfield's affidavit simply goes to the point that Rogers did not describe to him this invention, as was alleged by Rogers in his testimony taken in the interference proceedings. It is proposed to also show by Burchfield and one John Coles that Rogers was not the original inventor. It has not been shown, nor pretended, that this testimony could not have been procured at the time of the interference in question, and it is therefore not newly. discovered evidence.

The General Chemical Examiner, Prof. Hedrick, in a written opinion, holds that Rogers does not describe an inoperative invention in his

specification and drawings, so far as the air-pump is concerned, and that if he did the air-pump is not a necessary part of the invention.

The allegation that Rogers made false suggestions in his oath cannot now be inquired into by this Office, his patent having passed beyond its jurisdiction, and the matter is not a proper subject of investigation in an interference proceeding.

I fail to see any good grounds for granting this motion or disturbing the previous decisions of the Office awarding priority to Rogers upon the invention now sought to be incorporated by Gillen in a reissue of his patent.

So far as the remedy of applicants in a court of equity is concerned, they now stand in the same position that Gillen did before he withdrew his claims from the original application, and can prosecute their suit in a court of equity upon this judgment.

The decision of the Primary Examiner, that the matter of this reissue application is res judicata, is affirmed.

WICKS vs. DU BOIS.

Interference.

O. G., Vol. xi, p. 244.

APPEAL FROM THE DECISION OF THE BOARD OF EXAMINERS-IN-CHIEF IN THE MATTER OF THE INTERFERENCE BETWEEN THE APPLICATION of George W. WICKS, FILED NOVEMBER 18, 1875, AND THE PATENT GRANTED TO FREDERICK N. DU BOIS AUGUST 24, 1875, APPLICATION FILED JULY 12, 1875, FOR IMPROVEMENT IN THE MANUFACTURE OF PLUMBERS' LEAD-TRAPS.—Decided February 16, 1877.

When a person in his endeavors to devise a machine for performing certain operations constructs a machanism incapable of producing the results aimed at, and afterward branches off in another direction, and attempts to create a new and different machine for performing the same operation, his first attempt must be regarded as an aban→ doned experiment.

A machine differing radically from one which was previously made and abandoned, involving new operations and mechanisms, although designed to accomplish the same end, cannot be regarded as a continuance of such experiments, so as to entitle the party to go back to s first endeavors to establish the date of conception of his invention.

A person does not assume the role of an inventor until he has devised the means whereby his ideas are to be made available to the public.

The mere knowledge that certain things might be done and would be valuable, without being accompanied with a knowledge of the means or method whereby useful results could be produced, does not amount to the conception of an invention. JAMES A. WHITNEY and D. P. HOLLOWAY & Co., for Du Bois.

E. E. QUIMBY, for Wicks.

DOOLITTLE, Acting Commissioner:

The subject-matter put in issue by the Primary Examiner comprises— First, in the manufacture of lead-traps, the ejectment, from an annular orifice or die, of two or more streams of lead moving with unequal velocity; second, an improved

machine for making lead-traps consisting of a die having a central mandrel and an annular opening through which the metal is forced, said mandrel being extended to form the partition in the die, on each side of which an independent piston operates to force the metal out at any desired speed equal to, or different from, the speed of the opposite piston.

Both of the lower tribunals have found that Wicks was the first to conceive of the invention. The Board held that Wicks had reduced the invention to practice, whereas the Examiner of Interferences found the contrary; and it is mainly upon this point that the decision of the case turns.

The machine for carrying out the process and made the subject of the second issue in this case, consists, essentially, of two horizontal cylinders communicating with a vertical aperture or die, in the center of which the core or mandrel is situated. The mandrel is provided with lateral projections, forming a division-plate between the two cylinders. This partition extends to within a short distance of the mouth of the die. Lead is supplied to the cylinders and forced out by hydraulic pressure, and as oue piston is made to advance more rapidly than the other, the lead on that side is made to flow with greater rapidity, thereby causing the pipe to curve in the opposite direction, producing a curved pipe of uniform size and thickness, the length and degree of curvature being controlled by the speed of the piston.

Du Bois has obtained his patent, and was the first in the Office; consequently the burden of proof is upon Wicks.

In support of his claim of priority Wicks has shown that, as early as the year 1868, he began experimenting to obtain some means for making lead-traps by forcing lead from a die at unequal velocities. He testifies that between July and October of 1868, he made a drawing, Exhibit 1, and in the same year a model, Exhibit 2, embodying the same idea. This model consists of an iron block, having two parallel holes bored therein, -converging at their upper ends toward a die and mandrel, such as are employed in lead-pipe machines. The pistons were operated by two screws. He made some experiments with this model, and formed some curved pipe from clay; but, according to his own statement, he abandoned the device as unsuccessful in November, 1863, when he put it away and lost sight of it until after the declaration of interference, when it was again brought to light after considerable search had been made for it. In 1869 or 1870 he contrived a new plan, employing three cylinders instead of two, one cylinder to force the lead direct from the die, and the two others to give an additional pressure on either side when it was desired to form a bend. A model and drawing of this were made, but subsequently abandoned, and a new departure inaugurated. This was to employ two converging cylinders, but was subsequently abandoned, not being deemed practicable. His next endeavor was to obtain the varying flow of lead by employing a cylinder divided centrally by a partition which supported the mandrel or core. Two pistons, or, as it is termed, a divided piston, were employed to force out the lead. This is

the highest point yet attained by him in his course of experiments, and upon it depends his claim to priority, the board having decided in his favor upon the ground that this idea was reduced to practice and constituted a perfected invention. The plan spoken of was hit upon in October or November, 1873, and in the winter of the same year a machine was constructed in accordance with the plans thus far developed; but it was not until after the 4th of July, 1874, that the means for operating it were obtained, and in December of that year it was first tested. The machine used is put in evidence as an exhibit, as are also the samples produced upon it.

It appears from the testimony that, in order to produce a curve with this machine, it was necessary to insert a piece of iron under either piston to drive the lead out on that side. A single hydraulic jack was the motive-power employed, and none other, it would appear, had been devised. A careful analysis of the action of this machine convinces me that it does not, as constructed, embody the invention here in conflict. It is evident that when both pistons are operated by the jack a uniform pressure will be produced, and a straight pipe will issue from the orifice. If, now, the jack is lowered, as would appear from the testimony was the operation, and a piece of iron inserted under either piston, upon the jack being again operated, lead will flow from that side only, and continue until the other piston has reached the lead, when it will again flow uniformly. Nothing is here found which can be said to answer the description of two or more convergent streams of lead moving at unequal velocities; for it is evident that in this case, except when the flow on one side is interrupted, the lead must necessarily move at the same velocity on either side.

The truth of these conclusions is demonstrated in the samples of pipe produced by this machine. At nearly every bend in Exhibits 10 and 11 the metal is entirely cut through, or, as it might be said, scraped off, caused, undoubtedly, by the cessation of the flow of lead on that side while issuing from the other; even the shortest bends show this result. The exhibits themselves bear evidence of having been tampered with. It would be an utter impossibility to produce the short curves shown upon the machine, Exhibit 9, the distance between the bends being less than from the center of the die to its circumference. This tampering with the exhibits connected with the imperfect results which were obtained, a complete trap never having been made, and the further fact that. he did not continue his endeavors to perfect this machine, or take any steps in that direction, but branched off upon another idea, establish, as a necessary conclusion of law, that his efforts in this direction, as embodied in the split piston machine, Exhibit 9, were unsuccessful and abandoned experiments.

Thus far we have been considering the improvement in the art. With reference to the device itself, constituting the second issue, it can only be said that he made a drawing thereof in the spring of 1873, and in

1874, after his experiment with the split cylinder, he made working drawings thereof. Models embodying this invention were made in the summer or fall of 1873 or spring of 1874, and in July or August, 1875; but he has never made a machine of this description.

My conclusions are, therefore, that the testimony shows, on the part of Wicks, a series of unsuccessful attempts at embodying the invention in controversy; that he has never completed that invention or demonstrated its operativeness; on the contrary, every attempt that he has made has shown that he had not got the invention in such form as to be valuable to the public or capable of being practiced by it.

Subsequent to the filing of the present application it seems that Wicks devised still another machine for making lead-traps, obtained a patent therefor March 28, 1876, and has constructed a machine; but it does not appear that a trial has ever been made of the same. The testimony respecting this point is suspiciously silent and indefinite. According to this plan the escape of lead from an ordinary lead-pipe machine is diminished on either side by opening a valve and permitting some of the lead to escape from that side, thus lessening the flow through the die. Whether this method is capable of being practically utilized remains to be seen. Wicks has not demonstrated it, and, until he has done so, it would be impossible to say that he had made an invention at all. More. over, this invention is not a continuance of that described in the appli cation here involved, but differs radically therefrom, involving new operations and mechanism. He was following out one main idea, but, until he had devised the means whereby such idea was to be made available to the public, he had not assumed the rôle of an inventor. Seymour vs. Osborne (11 Wall., 516); Agawam Woolen Co. vs. Jordan (7 Wall., 583).

On the part of Du Bois it is claimed that in October, 1871, he conceived of the invention in dispute. The testimony does not support this claim, however. The mere knowledge that certain things might be done and would be valuable without being accompanied by a knowledge of the means or method whereby useful results could be produced, does not amount to the conception of an invention. Therefore, when Du Bois saw the lead issuing in a curve from the ordinary lead-pipe machine, and thought that it might be utilized for forming traps, without knowing in what manner or by what means it was to be employed, he cannot be said to have conceived the idea of an invention, which, as the testimony shows, required study and experiment before it could be made valuable. It is not clear at what time he first thought of the means described in the patent for accomplishing the result sought. In March, 1875, he made drawings of the invention, and in April the model accompanying his application. He commenced the construction of the machine in November, 1875, and in March, 1876, it was completed and put in operation, working successfully, and producing merchantable articles. Even disregarding the fact that Du Bois had reduced the in