for a rehearing, it can not be raised on an appeal before the commissioner. Thomas Phillips, 12 O. G. 311.

The duty of the commissioner in cases involving only questions of fact, is discharged when he has so far examined the case as to find that the decision of the board is not against the manifest weight of the evidence. Blanchard v. Strain, 2 Dec. Čom. 54; Fawcett v. Graham, 1 Dec. Com. 113; White v. Purdy, 2 Dec. Com. 115.

The concurrent decisions of lower tribunals upon questions of fact will not be set aside upon appeal except for manifest error. Hazelip v. Richardson, 10 O. G. 746.

Upon a question of fact arising in an interference, the conclusions of the principal examiner and of the examiner in chief are entitled to consideration, and the benefit of a doubt will be given to their finding. Fawcett v. Graham, 1 Dec. Com. 113.

Although the examiner of interferences and the examiners in chief concur on a question of fact, yet the commissioner may reach a different conclusion, for their judgment is not binding on him. Packard v. Sandford, 16 O. G. 1182; Dickson v. Kinsman, 18 O. G. 1225.

If a case has been decided by one commissioner, his successor will not reopen it unless the party shows such a ground as would entitle him to a new trial. Huttner v. Knox, 16 O. G. 1046; John L. Mason, 2 Dec. Com. 20.

When a case is pending on appeal before the commissioner, the interference can not be dissolved on the ground that the issue is uncertain unless the objection was taken before the examiner. Englemann v. Vester, 16 O. G. 96.

A case will be remanded to the primary examiner, at his request, for the purpose of giving further references to the applicant. Israel Townsend, 2 Dec. Com. 97.

If a commissioner dissolves an interference on the ground of want of novelty on the part of the applicant, the latter may have the claim formally rejected so that he can regularly take an appeal. Knox, 16 O. G. 1048.

The extent of a judgment as res judicata is to be determined not by the word, but by the substance of the decision. Pennie, 17 O. G. 330.

Although an alternative writ of mandamus was issued to the commissioner to show cause why he should not re-examine a decision in an interference case, yet if he resigns, the patent may be issued by his successor. Withington v. Locke, 15 O. G. 426.

If an applicant desires to amend the specifications after the decision, the amendment may be made before a primary examiner. Reynolds, 24 O. G. 993; Hitt, 25 O. G. 192.

SEC. 4911. If such party, except a party to an interference, is dissatisfied with the decision of the commissioner, he may appeal to the Supreme Court of the District of Columbia, sitting in banc.

Statute Revised-July 8, 1870, ch. 230,

48, 16 Stat. 205.

Prior Statutes--July 4, 1836, ch. 357, 27, 5 Stat. 119.-March 3, 1839, ch. 88,2 11, 5 Stat. 354.-August 30, 1852, ch. 107, 1, 10 Stat. 75.

The only appeal is from a refusal to grant a patent. Pomeroy v. Connison, Cranch Pat. Dec. 112.

If the commissioner holds that a party applying for a patent" is not the original and first inventor," and decides against him upon that ground, the applicant can take an appeal from his decision. The commissioner, having reached this conclusion, is under no obligation to go further and examine any other question arising in the case, and it is not necessary to the right of appeal that he should do so. Commissioner v. Whitely, 4 Wall. 522.

If the commissioner decides that the applicant is not such a person as is entitled by law to a reissue, the applicant has a right under the statute to appeal from this decision, whether right or wrong. This preliminary question is as much within the scope of his authority as any other which can arise, and having resolved it in the negative there is no necessity for him to look further into the case. Commissioner v. Whitely, 4 Wall. 522.

An applicant whose patent has been refused may appeal, although the commissioner improperly put him into interference with another. Ex parte Platts & Walden, 15 O. G. 827.

The jurisdiction of the appellate court is limited upon appeals from the commissioner of patents, and it has no authority to order a reissued patent to be antedated to the time when the application for reissue was filed. Whiteley & Gage, 1 Dec. Com. 53; Andrew Whiteley, 1 Dec. Com. 70. The only question intended to be cut off from appeal beyond the commissioner in a case of interference is the question of priority of invention. Weitling v. Cabell, 2 O. G. 223; vide Bain v. Morse, 6 West. L. J. 372.

No appeal lies from the refusal of the commissioner to issue a patent to an assignee whose assignment was not recorded until a patent had issued to his assignor, and a mandate from an appellate judge requiring it will not be regarded. Whiteley, assignee, 1 Dec. Com. 79.

The appellate court can not declare an amended specification entitled to a patent which has never been received or examined at the office. Whiteley & Gage, 1 Dec. Com. 53.

Where it is conceded the facts are in substance the same as in a case in which the supreme court has rendered a decision, it is the duty of the commissioner to apply such decision without regard to his individual opinion of the law. Mason v. Doellbor, 1 Dec. Com. 26; Shaw v. Sedgebeer, 2 Dec. Com. 5.

In the absence of positive expression of opinion on the part of the appellate judge upon a given point, and of information as to the nature or scope of the discussion before him, a pro forma rejection will be given in order that an appeal may be taken. Mason, 2 Dec. Com. 35; Gordon, 2 O. G. 29.

SEC. 4912. When an appeal is taken to the Supreme Court of the District of Columbia, the appellant shall give notice thereof to the commissioner, and file in the patent office, within such time as the commissioner shall appoint, his reasons of appeal, specifically set forth in writing. Statute Revised-July 8, 1870, ch. 230, ? 49, 16 Stat. 205.

SEC. 4913. The court shall, before hearing such appeal, give notice to the commissioner of the time and place of the hearing, and on receiving such notice the commissioner shall give notice of such time and place in such manner as the court may prescribe, to all parties who appear to be interested therein. The party appealing shall lay before the court certified copies of all the original papers and evidence in the case, and the commissioner shall furnish the court with the grounds of his decision, fully set forth in writing, touching all the points involved by the reasons of appeal. And at the request of any party interested, or of the court, the commissioner and the examiners may be examined under oath, in explanation of the principles of the thing for which a patent is demanded. Statute Revised-July 8, 1870, ch. 230, 51.

SEC. 4914. The court, on petition, shall hear and determine such appeal, and revise the decision appealed from in a summary way, on the evidence produced before the commissioner, at such early and convenient time as the court may appoint; and the revision shall be confined to the points set forth in the reasons of appeal. After hearing the case the court shall return to the commissioner a certificate of its proceedings and decision, which shall be entered of record in the patent office, and shall govern the further proceedings in the case. But no opinion or decision of the court in any such case shall preclude any person interested from the right to contest the validity of such patent in any court wherein the same may be called in question.

Statute Revised-July 8, 1870, ch. 230, 50, 16 Stat. 205.

The supreme court is limited to the reasons of appeal, for the appeal is only an appeal from so much of the decision as is affected by the reason. Arnold v. Bishop, Cranch Pat. Dec. 103; Smith v. Flickenger, Cranch Pat. Dec. 116.

The supreme court can only examine into the reasons of appeal, and the record and proceedings as far as they apply thereto, for the purpose of ascertaining whether the commissioner has made an erroneous decision, and can not revise the decision on any other ground than that upon which the application was rejected. Ex parte Conklin, 1 McArthur 375; s. c. 5 O. G. 235.

An officer or counsel of the patent office may appear and argue the questions involved in the appeal. Perry v. Cornell, Cranch Pat. Dec. 132. A decision in an interference case is not conclusive as between the patentee, whose patent was in controversy, and persons who were not parties to the interference, for estoppels must be mutual. Perry v. Starrett, 3 Ban & Ard. 485; s. c. 14 O. G. 599.

A decision in an interference case will not prevent a person who purchased a machine from the defeated party from contesting the novelty of the invention by setting up the prior invention of another. Peck St, W. Co. v. Lindsay, 18 O. G. 63; s. c. 5 Ban & Ard. 390; s. c. 2 Fed. Rep. 688.

A decision on an interference in favor of a patent and against an application, is not conclusive as to priority of invention in an action against third parties. Perry v. Perry 14 O. G. 599.

The decision of the commissioner is conclusive on the question of priority as between the parties. Shuter v. Davis, 24 O. G. 303; s. c. 16 Fed. Rep. 564; Holliday v. Pickhardt, 22 O. G. 420; s. c. 12 Fed. Rep. 147.

SEC. 4915. Whenever a patent on application is refused, either by the commissioner of patents or by the Supreme Court of the District of Columbia upon appeal from the commissioner, the applicant may have remedy by bill in equity; and the court having cognizance thereof, on notice to adverse parties and other due proceedings had, may adjudge that such applicant is entitled, according to law, to receive a patent for his invention, as specified in his claim, or for any part thereof, as the facts in the case may appear. And such adjudication, if it be in favor of the right of the applicant, shall authorize the commissioner to issue such patent on the applicant filing in the patent office a copy of the adjudication, and otherwise complying with the requirements of law. In all cases, where there is no opposing party, a copy of the bill shall be served on the commissioner; and all the expenses

of the proceedings shall be paid by the applicant, whether the final decision is in his favor or not.

Statute Revised-July 8, 1870, ch. 230, § 52, 16 Stat. 205.
Prior Statute-March 3, 1839, ch. 88, § 10, 5 Stat. 354.

If the application is not brought before the commissioner by an appeal from an adverse decision of the examiners, but simply comes before him with a report of the examiners, and he withholds the patent in virtue of his general supervisory authority, the remedy is not by appeal to the supreme court, but by a bill in equity under this section. Hull v. Commissioner, 7 O. G. 559; s. c. 8 O. G. 46; s. c. 2 McArthur 90, 125.

If a party whose claim is rejected on an interference files a bill under this section, he may introduce new evidence in addition to that produced in the Patent Office. Ex parte Squire, 12 O. G. 1025; s. c. 3 Ban & Ard. 133. Although an agreement by one joint inventor is merely executory to assign future inventions, yet the joint inventors can not have a patent issued to them. Rumsteller v. Atkinson, 23 O. G. 940.

For practice under this section, see Greeley v. Commissioner, 6 Fish. 675; s. c. 1 Holmes 284; 4 O. G. 612; Prentiss v. Ellworth, 2 Whart. Dig. 365; ex parte Arkell, 15 Blatch. 437; s. c. 4 Ban & Ard. 80.

The jurisdiction conferred by this section is not appellate but is independent and original. Whipple v. Miner, 23 O. G. 2236; s. c. 15 Fed. Rep. 117.

If the commissioner determines the question of priority on an interference between two applicants, the unsuccessful applicant can not obtain an injunction against the issuing of the patent on a mere allegation of error of judgment. Whipple v. Miner, 23 O. G. 2236; s. c. 15 Fed. Rep. 117.

SEC. 4916. Whenever any patent is inoperative or invalid, by reason of a defective or insufficient specification, or by reason of the patentee claiming as his own invention or discovery more than he had a right to claim as new, if the error has arisen by inadvertence, accident, or mistake, and without any fraudulent or deceptive intention, the commissioner shall, on the surrender of such patent and the payment of the duty required by law, cause a new patent for the same invention, and in accordance with the corrected specification, to be issued to the patentee, or, in the case of his death or of an assignment of the whole or any undivided part of the original patent, then to his executors, administrators, or assigns, for the unexpired part of the term of the original patent. Such