except the steam-chest, and in lieu of it provides what is called a "bifurcated pipe." As the elements hold precisely the same relations to one another and to the other parts of the locomotive in both cases, the sufficiency of the reference narrows itself to a consideration of the equivalency of the steam-chest, or, more properly, waste-steam chamber, to the "bifurcated pipe" of the patentee, for it is quite clear that if these two are the same in function and operation the result of their conjoint action with the other identical elements will likewise be the same, and the combination claimed be fairly anticipated by the patent. The steam-chest or chamber is stated to be for the purpose of receiving, superheating, and distributing the waste steam from the exhaust-ports of the cylinders. The alleged superheating action results from the location of the chamber within the smoke-flue of the locomotive, exposed as it is to the direct heat of the combustion products passing to the stack. Its enlarged size, with respect to the induct-pipes from the exhaust-ports and the educt distributing-pipes, between which it is situated, permits of the expansion of the entering steam, and thus momentarily retards its passage, so that it is longer exposed to the heat of the chamber, and consequently is reheated to a higher degree than it would be if no such expanding-chamber were interposed. To my mind the bifurcated pipe satisfies the conditions necessary to effect the retardation and reheating of the circulating steam precisely the same as the steam-chamber. It is enlarged with relation to the induct and educt pipes, and is located so as to be fully exposed to the heating action of the furnace-gases.

I can take no notice of the kind of valves applicant uses, nor of their situation within the escape-pipes. Attorney has dwelt with much stress upon these differences in kind and location of valve as making a marked difference in advantageous result in favor of the applicant's combination. This, however, I am not called upon to decide. No reference or limita, tion is made in the claim either to the valve itself or to its situation. It reads for "the combination of the steam chest F," &c., irrespective of the kind of valve employed, or, indeed, whether there is any valve at all or not. Nor is it important that a number of pipes, more than is shown in applicant's drawing, can be attached to his steam-chamber, and thus permit of a more varied utilization of the steam. The same may be said of the patentee's bifurcated pipe. A number of holes may be made in each branch, above the valve, and auxiliary pipes inserted therein, without more mechanical skill than is called for in attaching them to the steam-chamber.

The patentee is limited neither to the precise form nor size of bifurcated pipe shown by his drawing, so that in practice it may be of capacity fully equal to that of the steam-chamber. It serves for the same purpose as does this waste-steam chamber, and receives, superheats, and distributes the steam in the same sense that the latter does. It is, broadly, its full equivalent, and the claim must be ruled to be met. The decision of the Board is affirmed.

STOVER vs. CLARK.

Interference; Appeal.

O. G., vol. xii, p. 188.

APPEAL FROM THE DECISION OF THE BOARD OF EXAMINERS-IN-CHIEF IN THE MATTER OF THE INTERFERENCE BETWEEN THE APPLICATION OF D. C. STOVER, FILED JULY 14, 1876, AND THE PATENT OF NORMAN C. CLARK, GRANTED JUNE 27, 1876, FOR "IMPROVEMENT IN BARBED-WIRE FENCES."-Decided July 14, 1877.

In interference controversies, where the adverse party is a patentee, the applicant must show conclusively that he fully reduced the invention to a form or condition capable of standing the test of actual practical use prior to the invention by the patentee.

An experimental reduction-the illustration of a theory by a model-will not suffice of itself to establish this fact.

An applicant who devised an experimental model, which was afterward lost without test as to its practicability, and did nothing further until his contestant had secured a patent, cannot be said to be the prior meritorious inventor.

C. H. WATSON & Co., attorneys for Stover.

L. A. DEANE, attorney for Clark.

SPEAR, Commissioner:

The subject-matter in dispute is

Barbed metallic material for fencing, having stamped or cut barbs or points projecting from both sides, formed at intervals between the edges of said material, and forming part of the same.

The question in controversy is one capable of easy solution if the bearing of the Office in relation to interference proceedings, in which one of the parties is a patentee, is kept clearly in mind. In this class of cases the adverse applicant must show conclusively that prior to the time of the invention by the patentee he (the applicant) had fully reduced it to a form or condition capable of standing the test of actual practical use. An experimental reduction, the illustration of a theory by a model, will not suffice of itself to establish that completion which is alone regarded by the law as sufficient to impeach the title of the patentee. As was said in Coffin vs. Ogden, 18 Wall., 124

If the thing were embryotic or inchoate; if it rested in speculation or experiment; if the process pursued for its development had failed to reach the point of consummation, it cannot avail to defeat a patent founded upon a discovery or invention which was completed, while in the other case there was only progress, however near that progress may have approximated to the end in view.

With this in mind, and referring to the evidence adduced, it appears that Clark, the patentee, made his first model of the invention about the first or second week of April, 1876, which was followed on the 31st day of May by the filing of his application in the Patent Office, and the grant to him on the 27th day of June of Letters Patent No. 179,268. We may safely fix about the middle of April as the time when the invention was reduced to a practicable form, and thus completed in a patentable sense, so that this is the date from which we must reckon in determining whether his opponent, Stover, was the prior meritorious inventor of the subject-matter. In behalf of Stover, we find that

his first model was completed some time in September, 1874. This, however, was subsequently lost, and he states that

I cannot fix any dates as to any time I made a duplicate model, but can remember of frequently cutting the same from paper with a knife, for the purpose of describing it.

The original model is not before me, so that I cannot judge from an spection whether it was such a reduction as amounts to a demonstration of the completion and utility of the invention. The model was lost without a single test as to practicability, and the c haracter of its duplicates made afterward from paper slips is a pretty strong indication of the theoretical condition in which the entire matter was involved during all this time.

Stover delayed applying for a patent for the invention until July, 1876, and this, too, notwithstanding another of his own of like character, that had its inception at about the same time, was filed and prosecuted with vigor. He gives as a reason for the delay that he had no machinery which was capable of cutting the barbs from the strip in the desired manner, and was busy in devising it, yet there is nothing to show that the same obstacle did not intervene to prevent the filing of an application for his other invention as well.

His attitude toward the invention throughout is that of one who had but little confidence either in its perfection or utility, and the conclusion of mere experimental reduction is very difficult to avoid. No practical use is alleged or proved, nor does it appear that a single strip of material was manufactured in form to be thus applied until his assignee, Brinkerhoff, commenced to take orders for and to make it in July of 1876, fully three months after Clark had completed the invention.

Even admitting that September, 1874, is the correct date to ascribe to Stover in the completion of a model illustrating the invention, his long delay in reducing to practical use, which did not occur until a month after the grant of a patent to his more diligent contestant, is an insuperable objection to the award of priority and the allowance of a patent. It would be idle for the Office to make a grant founded on a pure experimental embodiment of an invention, which, as has been seen, the courts would decline to sustain.

The judgment of the Board of Examiners-in-Chief in favor of Clark is affirmed.

THOMAS PHILLIPS.

Appeal.

O. G., vol. xii, p. 311.

APPEAL FROM THE DECISION OF THE BOARD OF EXAMINERS-IN-CHIEF IN THE MATTER OF THE APPLICATION OF THOMAS PHILLIPS, FILED NOVEMBER 5, 1875, FOR "IMPROVEMENT IN PAPER."-Decided July 31, 1877. A compound paper in which a layer of bleached pulp is superposed upon one of unbleached is anticipated by a paper having layers of fine and coarse pulp correspondingly arranged; the result, a paper of good finish and having the requisites of cheapness and durability, being the same in both cases.

Articles new to the trade are not necessarily patentable. Invention must be exercised in their production.

No invention was necessary to substitute bleached pulp for the light quality pulp previously employed, the characteristics of the substitute material being well known in the art, and the present use without discovery of any peculiar fitness therefor. DODGE & SON, attorneys for applicant.

SPEAR, Commissioner:

The novelty of the following claim is involved in this appeal :

As a new article of manufacture, a paper composed of two layers of pulp, one bleached and the other unbleached, substantially as set forth.

The purpose of the invention is to make a paper suitable for the manufacture of paper bags and other like articles, which shall be cheap and strong, and at the same time possessed of a good finish. To this end applicant provides two vats in his paper-machine, one of which contains bleached pulp, and the other unbleached pulp from the same stock and of the same quality. A layer of bleached pulp is superposed upon one of the unbleached, and the two felted and compressed together during the progress of the continuous web through the machine. The effect is to make a paper which has a bright exterior surface from the presence of the bleached pulp, and at the same time has the requisites of cheapness and strength from the use of the unbleached.

The principal references which have been cited in rejection are the American patent of William A. Russell, No. 157,192, and the English patent No. 834 of 1864.

It is my purpose to consider simply the English patent, for while that of Russell involves very much the same idea, the English reference resembles applicant's more closely, not only in the manner of making and the machinery devised for the purpose, but also in the product which results. The compound paper, the English patentee says, is for the purpose of making paper-hangings, and consists of a lower layer of the inferior coarser pulp, and an upper layer of finer pulp deposited thereon, and united together, as pulp, into a single continuous web during their passage through the machine. There can be no doubt, and, indeed, attorney has admitted as much, that the process pursued by the English patentee and the applicant are substantially identical. He rests the merit of his case entirely on the ground that his particular article, a compound paper made up of bleached and unbleached pulp, presumably of the same stock and quality, although the claim is not so limited, is new to the trade in view of the state of the art, and is therefore patentable. This, however, does not follow. In the case of the Collar Company vs. Van Dusen (23 Wallace, 563), the court, in alluding to this very class of cases, makes use of the following language:

Articles of manufacture may be new in the commercial sense when they are not new in the sense of the patent law. New articles of commerce are not patentable as new manufactures unless it appears in the given case that the production of the new article involved the exercise of invention or discovery beyond what was necessary to construct the apparatus for its manufacture or production.

It remains for me to inquire whether that invention has been exercised in the present case, which entitles the applicant to a patent.

There is nothing in the English patentee's specification which would lead us to conclude that his finer and coarser pulps were made from the same stock; but it should be remembered that he selects these finer and coarser qualities of pulp for the same purpose proposed by applicant. He insures presentability on the exterior by the finer pulp, and strength and durability by the coarser pulp beneath. Now, the bleached pulp which the applicant proposes to employ is well known in its characteristics, and has been in long use in the art. There has been no discovery of any new quality in the present case which would entitle its use to consideration. It is whitened by bleaching, and more or less diminished in strength. Applied to the unbleached pulp it gives a superior finish, and at the same time makes a stronger paper than would be the case if it were used alone. But these are the qualities set forth by the English patentee. What then has applicant done? He has substituted one well-known pulp for another, where both perform the same office in the same way and produce the same effect. It may evidence judicious selection to take the bleached pulp in preference to another light one from a different stock, but that is all. It certainly involved no invention, so that the stricture against the patentability of articles merely because they are new to the trade, referred to above, would seem to clearly apply.

My attention has been called by attorney to some irregularities of procedure committed by the Board and Primary Examiner. There is little doubt but that attorney is technically correct, and that both these tribunals departed somewhat from the prescribed rules of practice in disposition of the case when before them. The objection, as I understand it, relates more particularly to the citation of a former patent granted to applicant for an improved paper bag as anticipating the present application. I do not deem it necessary to dwell upon this at length, as the patent has not been considered in the present decision, and the fault of the Board, which brought it irregularly to my notice, has been without damage. Moreover, the attorney is concluded from raising the objection on the present appeal, as it should properly have been made before the Board of Examiners-in-Chief on a motion for a new hearing and as reasonable ground therefor.

The decision of the Board rejecting the application is affirmed.

NICHOLAS SEIBERT.

Motion.

O. G., vol. xii, p. 268.

IN THE MATTER OF THE REISSUE APPLICATION OF NICHOLAS SEIBERT FOR "IMPROVEMENT IN LUBR CATORS," FILED AUGUST 29, 1876.-Decided August 1, 1877.

Doubted whether a result which is not common to all machines constructed under a patent can be appropriated on reissue, since it is in its nature special or fugitive.