A foreign inventor can not on an interference with an American inventor have a commission issued to prove that his invention was made in a foreign country prior to the time when it was patented or published. Rumpft v. Kohler, 23 O. G. 1831.

Notice.

When ex parte affidavits are used to oppose an application for a patent the applicant is entitled to a reasonable opportunity to cross-examine the affiants and to rebut their statements. Hedges v. Daniels, 17 O. G. 394. A notice to take testimony which will not enable the adverse party to reach the place except by travelling both day and night is not sufficient. Hoag v. Abbott, 14 O. G. 471.

A notice of twenty-four hours to take depositions at a distant place is not sufficient. Hoosier Drill Co. v. Ingels, 15 O. G. 1013.

If no reasonable notice of the time of taking deposition is given, the right to object to its use is not lost by its use at a hearing where the party did not appear. Hoosier Drill Co. v. Ingels, 15 O. G. 1013.

If the notice of the time of taking depositions is unreasonable, the party does not waive the objection by accepting service of the notice. Hoosier Drill Co. v. Engels, 15 O. G. 1013.

Although a notice to take testimony is not sufficient, yet the testimony is admissible unless seasonable objection is made thereto. Hoag v. Abbott, 14 O. G. 471.

Extension of Time.

Although an affidavit for an extension of time to take testimony in an interference case does not show due diligence, yet time may be allowed under proper restrictions. Appleby v. Morgan, 16 O. G. 96.

If a party opposes an application for an extension of time to take testimony on the ground that the proposed testimony is immaterial, the extension will not be allowed unless he attempts to contradict the testimony which is to be supported by the new evidence. Kenerson v. Brown, 16 O. G. 857.

An extension of time to take rebutting testimony to prove that the adverse party is not an original inventor, will not be granted unless it is shown that his attention was called to the matter during his examination. Neracher v. Cain, 16 O. G. 220.

If an application for an extension of time to take testimony sets forth oral evidence and written evidence which is merely cumulative, and the examiner refuses to extend the time upon an admission of the truth of the oral testimony, no application for an extension can be subsequently made. Lomont v. Kromer, 16 O. G. 1141.

SEC. 4906. The clerk of any court of the United States, for any district or territory wherein testimony is to be taken for use in any contested case pending in the patent office, shall, upon the application of any party thereto, or of his agent or attorney, issue a subpoena for any witness. residing or being within such district or territory, com

manding him to appear and testify before any officer in such district or territory authorized to take depositions and affidavits, at any time and place in the subpoena stated. But no witness shall be required to attend at any place more than forty miles from the place where the subpoena is served upon him.

Statute Revised—July 8, 1870, ch. 230, ?? 44, 45, 16 Stat. 204.

Prior Statute-March 2, 1861, ch. 88, ? 1, 12 Stat. 246.

SEC. 4907. Every witness duly subpoenaed and in attendance shall be allowed the same fees as are allowed to witnesses attending the courts of the United States.

Statute Revised—July 8, 1870, ch. 230, ? 45, 16 Stat. 204.
Prior Statute-March 2, 1861, ch. 88, 1, 12 Stat, 246.

SEC. 4908. Whenever any witness, after being duly served with such subpoena, neglects or refuses to appear, or after appearing refuses to testify, the judge of the court whose clerk issued the subpoena, may, on proof of such neglect or refusal, enforce obedience to the process, or punish the disobedience as in other like cases. But no witness shall be deemed guilty of contempt for disobeying such subpoena, unless his fees and traveling expenses in going to, returning from, and one day's attendance at the place of examination, are paid or tendered him at the time of the service of the subpoena; nor for refusing to disclose any secret invention or discovery made or owned by himself.

Statute Revised-July 8, 1870, ch. 230, ?? 44, 45, 16 Stat. 204.
Prior Statute-March 2, 1861, ch. 88, ? 1, 12 Stat. 246.

SEC. 4909. Every applicant for a patent or for the reissue of a patent, any of the claims of which have been twice rejected, and every party to an interference, may appeal from the decision of the primary examiner, or of the examiner in charge of interferences in such case, to

the board of examiners in chief; having once paid the fee

for such appeal.

Statute Revised July 8, 1870, ch. 230, 2 46, 16 Stat. 204.

Prior Statutes-March 2, 1861, ch. 88, ?? 2, 3, 12 Stat, 247.-June 27, 1866, ch. 143, 1, 14 Stat. 76.

If the examiners in chief decide that the applicant was the prior inventor, and then remand the case to the primary examiner to inquire whether he has abandoned his invention, the other party can not appeal from the latter decision. Bigelow v. Thatcher, 2 McArthur 24.

When the applicant appeals, the case is closed before the primary examiner, unless it is regularly remanded with leave to amend, or with directions for a further examination. If it is so remanded, the case is reopened below, and can not return to the appellate court until the applicant has responded to the new examination, either by amendment or fresh appeal. Appleton, 1 Dec. Com. 8.

When a case is appealed to the examiners in chief, the primary examiner loses jurisdiction over it, except to enter such amendment of the specification as may be required by the board, and pass the case for issue, and can not require any other amendment. Brunner, 1 O. G. 303.

The applicant, in taking an appeal from the primary examiner, can not add amendments to the claim which were not considered by him. Hammond, 2 O. G. 57; Barker & Mack, 4 O. G. 155.

An appeal to the examiners in chief lies only from such action of the primary examiner as is judicial in its nature, that is, such as respects the patentability, novelty, or utility of an invention. Krake, 1 Dec. Com. 100; Morton, 3 Dec. Com. 169.

The appeal to the examiners in chief is to be taken from the decision or judgment of the principal examiner, not from the reasons he assigns for it. Rockwell, 2 Dec. Com. 111.

The board of examiners in chief is the judge of the sufficiency of the reasons of appeal. Charles L. Young, 8 O. G. 643.

If the applicant fails to set forth the reasons of appeal, he may amend it by inserting them. Richardson, 16 O. G. 261.

The board is limited in its revision of cases appealed from the decision of the primary examiners to the record presented by the appeal. John T. Jones, 5 O. G. 58.

If it is denied that any improvement has been made in an invention, the objection goes to the merits, and an appeal may be taken to the examiners in chief. Sergeant, 9 O. G. 963.

If an application is rejected because the combination is not patentable, the appeal should be taken to the examiners in chief. Barcellos, 17 O. G. 110.

If the objection to the form of the claim is not valid, the applicant may appeal to the examiners in chief from a rejection of the claim. Winterlich, 17 O. G. 55.

Where the description is sufficiently clear and the decision of the examiner relates to the scope of the claim or the patentability of that which he understands to be included in the terms of the claim, the rejection is for lack of patentable subject-matter, the appeal must be to the board of examiners in chief. Charles C. Doten, 12 O. G. 846.

If an amendment is rejected because it involves a departure from the invention described in the original application, an appeal may be taken to the examiners in chief. Lanstrom, 17 O. G. 744.

If the examiner of interferences decides that neither party is the first and original inventor, an appeal may be taken to the examiners in chief. Wood v. Eames, 17 O. G. 512.

If an interference is dissolved on the ground that one of the devices is not operative, the case becomes ex parte, and is appellable not directly to the commissioner, but first to the examiners in chief. Fuller v. Brush, 16 O. G. 1188.

Where the examiner alleges that a device is in common use, the applicant may ask for more specific references; but if he does not, he admits the allegations to be true. Ellis & Albertson, 1 Dec. Com. 8.

No case should be appealed until it is in such condition that a patent may at once issue if the examiner be reversed. H. Mewes, 2 O. G. 617. Objections should be specific and accompanied with the grounds for them, so that amendments can be made and appeals taken upon definite points. H. H. Evarts, 5 O. G. 429.

If an examiner finds that the claims in an application are the same as those which have been condemned in a former case by the examiners in chief, he should reject it on the authority of their decision; he should not refuse to examine it. D. M. Nichols, 2 Dec. Com. 71; Duthie v. Casilear, 2 Dec. Com. 99.

All special amendments approved for examination by the board or commissioner, are subject to revision or restriction by the principal examiner in the same manner as original amendments. Duncan S. Farquharson, 10 O. G. 702.

If a case is remanded to the examiner for further consideration, he should consider and report upon the specific points raised by the board only. D. M. Kirkbride, 9. O. G. 1109.

Cases which have been heard and decided by the examiners in chief will not be reheard by them, except upon the order of the commissioner. Edwin Strain, 2 Dec. Com. 75.

If the rejection of the application is on the ground that it does not present the proper subject-matter for a patent, the appeal should be to the board of examiners, and not to the commissioner. Otto Pressprich, 11 O. G. 195; Henry M. Underwood, 1 O. G. 551.

If the primary examiner rejects an application for a patent for a combination, because the arrangement is not patentable as a combination, no references should be cited until the question of form is settled, and an appeal lies to the commissioner although they are. Daniel J. La Duc, 1 O. G. 549; L. F. Ellis, 9 O. G. 1110.

The reasons given by the examiner that go to the merits of the case for his rejection, can not be brought before the commissioner of patents on interlocutory appeal. David Edwards, 9 O. G. 793.

If an application is rejected because the invention or a part thereof is not operative, an interlocutory appeal can not be taken to the commissioner. Muhl, 17 O. G. 744.

Objections as to new matter in a reissue, and to the character of a combination, relate to the merits, and are not proper subjects of an interlocutory appeal. Jeremiah Keith, 9 O. G. 744.

Only such matters as affect office practice, and are interlocutory in their nature, are appellable direct to the commissioner. D. L. Proudfit, 10 O. G. 585; Du Motay, 16 O. G. 499.

If a claim is rejected for want of clearness in not defining any invention whatever, an appeal lies to the commissioner. A. Godillot, 6 O. G. 641.

An appeal from the decision of a principal examiner, requiring the division of an application, must be taken to the commissioner in person. Linus Yale, Jr., 1 Dec. Com. 110; Leopold Lehman, 2 Dec. Com. 70.

If the question decided by the examiner is that the claim is for a function merely, an interlocutory appeal will lie to the commissioner of patents. Jeremiah Keith, 9 O. G. 793.

If the primary examiner rejects an application on the merits, the board of examiners in chief must render a real and not a pro forma judgment. Buchanan, 16 O. G. 1049.

The decision of the examiners in chief is binding on the primary examiner. Rodgers, 16 O. G. 545.

When a case on appeal is for any reason returned to the primary examiner, it takes precedence over all other applications before him except other similar appeal cases previously returned to him. John Bigelow, 14 O. G. 821.

The appellant must pay the fee on each appeal from a decision in an interference case as to priority of invention, although the decision in one case disposes of others. Hedderwick, 15 O. G. 472.

SEC. 4910. If such party is dissatisfied with the decision of the examiners in chief, he may, on payment of the fee prescribed, appeal to the commissioner in person.

Statule Revised-July 8, 1870, ch. 230, 47, 16 Stat. 205.
Prior Statute-March 2, 1861, ch. 88, 2, 12 Stat. 247.

If the applicant has made an assignment which leaves him merely an equitable interest, he cannot take an appeal. Martin v. Olney, 9 O. G. 1107.

Where the commissioner has been counsel in a case, no examination of the merits will be entered into, but the decision of the examiners in chief will be affirmed pro forma. Waters v. Taylor, 1 Dec. Com. 21; Fortin & Drake, 1 Dec. Com. 26.

In an interference, the question of novelty should first be disposed of, and when that question is raised it controls the matter of jurisdiction of the commissioner in deciding upon the rights of the parties. Bennage v. Phillippi, 9 O. G. 1159.

The commissioner has the power to revise the order of an examiner in refusing or granting a rehearing. Loring v. Hall, 15 O. G. 471.

The commissioner will not in general reverse an order granting a rehearing. Loring v. Hall, 15 (). G. 471.

Cases will not be taken up out of their turn, upon appeals to the commissioner, even where inventors come in person to attend to their applications. Hewins v. Spooner, 2 Dec. Com. 94.

Upon appeals to the commissioner, additional evidence may be introduced sustaining a right to an extension. Samuel G. Lewis, Ex'r, 2 Dec. Com. 181.

If an objection to an irregularity in the citation of a reference could have been brought before the board of the examiners in chief on a motion