In view of the conclusions reached it is unnecessary to pass upon the motions to suppress testimony. Each party has introduced irrelevant testimony and witnesses on each side have made statements which, for various reasons apparent on the record, are entitled to little or no weight. In these circumstances it has seemed desirable to disregard such testimony and to decide the questions presented upon such evidence as was not open to said objections. The motions to suppress testimony are denied. [Court of Appeals of the District of Columbia.] Ross r. LOEWER. Decided December 17, 1896. 77 O. G., 2141. 1. APPEAL TO COURT OF APPEALS-LIMIT OF. The rule that all appeals taken from the Commissioner of Patents shall be taken within forty days from the date of the ruling appealed from, and not afterward, is a positive law to the court and to the suitors therein. 2. SAME-MOTION FOR REHEARING IN PATENT OFFICE-STAY OF TIME OF APPEAL. The contention that a motion for rehearing in the Patent Office should operate as a stay of the running of the time for the prosecution of appeal to this Court till after the motion for rehearing has been determined cannot be admitted. 3. APPEALS-MOTION FOR REHEARING-RULES OF COURT IN CERTAIN CASES DOES NOT APPLY TO PATENT OFFICE. The ruling that the time for prosecuting appeals from decrees in equity or writs of error from a judgment at law is stayed by a motion for rehearing or for new trial and only begins to run from the refusal of such motion is founded upon the principle that the judgment is not complete until the rehearing is disposed of; but the proceedings of the Patent Office are not controlled by the ordinary rules of practice that obtain in the courts of the country, but are controlled by statutory provisions and a code of rules made in pursuance of statutory provi. sions wholly unlike the rules of practice enforced in the courts. 4. CONSTRUCTION OF RULE-DILATORY MOTION TO AVOID APPEAL. A construction of the rules of the Office by means of which motions for mere dilatory purposes could be resorted to should not be adopted unless by express terms such construction cannot be avoided. 5. APPEAL-STAY OF PROCEEDINGS-RULE OF PATENT OFFICE APPLIES TO APPEAL TO COURT. Rule 123 of the Patent Office, which provides that in order to obtain a stay of proceedings motion must be made specifically to that effect, applies in reason and analogy to this case. The running of the time for appeal was not arrested by filing the motion for rehearing. Mr. James L. Norris, Messrs. Wood & Boyd, and Mr. George W. Rea for the appellant. Mr. R. G. Dyrenforth for the appellee. ALVEY, J.: There is a motion to dismiss the appeal in this case, grounded upon the allegation that the appeal was not taken in time under the second section of Rule XX of this Court. That section provides that all appeals taken from the Commissioner of Patents shall be taken within forty days from the date of the ruling or order appealed from. and not afterward. That rule was made to avoid delay and to expedite the final determi nation of patent-rights; and the rule was made in pursuance of the acts of Congress of February 9, 1893, and July 30, 1894. The rule is a positive law to this Court as well as to the suitors therein. This has recently been decided by this Court in the case in the matter of the application of George Bryant. The date of the ruling or order appealed from is the 6th day of July. 1896, and notice of the present appeal, under the statute, was not given until the 30th of September, 1896, some eighty-six days after the date of the decision appealed from. It is conceded that ordinarily the appeal would be too late; but it is contended that a motion for rehear ing which was filed in the Patent Office on the 10th of August, 1896, operated as a stay or as a suspension of the running of the time for the prosecution of appeal to this Court until after the motion for relearing had been determined. To this we cannot assent. The motion for rehearing was in fact denied on the 11th of August, 1896, though there was a subsequent application filed to have the motion for rehearing opened and further considered, and this latter application was filed, or, rather, notified to the opposition that such motion would be made, on the 21st of August, 1896, and such applica tion was finally denied on September 25, 1896. The appellant relies upon certain decisions of the Supreme Court of the United States, which hold that the time for prosecuting appeals from decrees in equity or writs of error from judgments at law will be stayed by the pendency of a motion for rehearing or a motion for new trial, and that the time for the prosecution of the appeal or writ of error will only commence to run from the time such motion for rehearing or new trial is refused. This is founded upon the principle that the judgment or decree is not complete or is suspended until the motion for rehearing is disposed of; but the proceedings of the Patent Office are not controlled by the ordinary rules of practice that obtain in the courts of the country, but are controlled by statutory provisions and a code of rules made in pursuance of statutory provisions wholly unlike the rules of practice enforced in the courts. Applications for rehearing in courts of equity and for new trial in courts of law are governed by certain fixed rules and restrictions in respect to time, and are subject to certain terms and conditions that in no manner apply in the case of motions for rehearing in the Patent Office. If the contention of the appellaut were sustained, it would virtually abrogate the rule of this Court prescribing the time within which appeals from the Commissioner of Patents must be taken. A losing party in any case who desired delay could produce that effect by simply entering a motion for rehearing even at the last day of the limit of the right of appeal. This was certainly not contemplated by the rule. No appeal, of course, will lie from the refusal of a motion for rehear ing, and this accords with all the cases. Forty days from the decision of the principal question afford ample time within which to make a motion for rehearing and to have the same disposed of by the Commissioner, who will doubtless act in all cases on such motions with respect to the right of appeal from the original order or decision. If the time for prosecuting appeals from the Commissioner of Patents could be prolonged or the running of the time suspended or deferred by motions for rehearing, such rule of practice would be sub. ject to great abuse, as such motions could and most likely would be frequently resorted to for mere dilatory purposes, and thus defeat the rules intended to effect expedition in disposing of patent appeals. Such construction of the rules ought not to be adopted, unless by express terms such construction cannot be avoided. The Patent Office is governed by a very salutary rule which applies to all motions made in that Office in interference proceedings. It is Rule 123, relating to the practice of the Patent Office in interference proceedings. By that rule it is provided that The filing of motions will not operate as a stay of proceedings in any case. To effect this, motion should be made before the tribunal having jurisdiction of the interference, who will, sufficient grounds appearing therefor, order a suspension of the interference pending the determination of such motion. Without such order of suspension the interference is effective, notwithstanding the pendency of a motion to rehear the case. That rule applies in reason and by analogy, if not in terms, to this case. The running of the time for appeal was not arrested or stayed by filing the motion for rehearing, and the order overruling such motion is not the subject of appeal. The appeal, therefore, must be dismissed, and it is so ordered. [U. S. Circuit Court of Appeals-Eighth Circuit SHICKLE, HARRISON & HOWARD IRON COMPANY r. ST. LOUIS CAR COUPLER COMPANY. Where a patent covers the combination of a draw-head, a knuckle, a pivotpin, and a locking-pin, it is not infringed by a defendant who furnishes the knuckles to replace broken ones. 2. SAME. The sale of a patented article by the patentee frees it from the grasp of the monopoly, and the purchaser may thereafter exercise the same dominion over it which he exercises over his other property. The right to repair a patented device is incidental to ownership. The fact that it is patented does not lessen the owner's right to put it in order when it gets out of repair, unless, considered as a whole, it is worn out and useless. 3. REPLACEMENT. When a patented machine is accidentally destroyed or when it is practically worn out, the owner thereof, under the guise of repairing it, cannot make a new machine. In such cases he must cast it aside and buy a new one from the patentee. APPEAL from the Circuit Court of the United States for the Eastern District of Missouri. Before CALDWELL, SANBORN, and THAYER, Judges. Mr. T. A. Post and Mr. George H. Knight for the appellant. THAYER, J., delivered the opinion of the Court. The St. Louis Car Coupler Company, the appellee, sued the Shickle, Harrison & Howard Iron Company, the appellant, for the infringement of several patents, among others for the infringement of reissued Letters Patent No. 10,941, granted to Madison J. Lorraine and Charles T. Aubin, dated June 26, 1888, and original Letters Patent No. 519,216, granted to William V. Wolcott and Henry O'Hara on May 1, 1894, for car-couplings. On the trial of the case in the Circuit Court the complainant below abandoned its charge of infringement, except as to the two patents last described. No reference therefore need be made to the other patents referred to in the bill of complaint. Both of the aforesaid patents on which the claim of infringement is predicated cover au improvement in car-couplers, and counsel for the complainant below concedes that the patented device covered by both patents consists, as an entirety, of four parts or elements: first, the drawheads or shanks; second, the coupling-head or knuckle which is used to connect them; third, the pivot-pin on which the knuckle turns, and, fourth, the locking. pin. All the claims of the patents are of the class known as "combina tion claims," in which the several parts of the device are claimed in combination in several different ways. In no instance is any one part or element of the complete coupler claimed by itself as a new article of manufacture or otherwise; but each claim is founded upon a combination of three or more of the aforesaid elements. Usually three parts or elements of the device are brought into combination by the language of a claim. Counsel for the complainant below further admits that the proof at the trial did not show that the defendant had either manufactured or sold or offered to sell the complete coupler. He claims, however, and of that fact there is no doubt, that the defendant has manufactured and sold that part of the device which in the specification is termed the "coupling-head." This part of the device may be aptly called the "knuckle," and it will be referred to hereinafter by that name. It is accordingly insisted that the manufacture and sale of that part of the device without the consent of the complainant constitutes an infringement of the patents. The proof shows without substantial contradiction that the knuckles which have been manufactured and sold by the defendant company were manufactured and sold by it under the following circumstances: The defendant at one time had manufactured the entire coupler covered by the patents in suit under and by virtue of a contract with the complainant company, and the couplers thus manufactured had been sold by the complainant to various railway companies for use on their cars. After the aforesaid contract between the parties had been terminated and the defendant had ceased to manufacture the entire coupler it made and at various times sold to the purchasing agents of the aforesaid railway companies certain knuckles, which were bought by said companies, as it seems, to take the place of knuckles that had been broken. The question to be determined, therefore, upon this record is whether the manufacture and sale of knuckles for the purpose last stated-that is to say, the sale thereof for the sole purpose of repairing broken couplers-to persons or coporations who had previously purchased such patent couplers from the complainant and were entitled to use them on their cars constitutes in law an infringement of the patents. The decision of this question turns on the further inquiry whether the purchase of new knuckles by said railroad companies and the substitution of the same in place of other knuckles that had been worn out or broken amounted to a reconstruction or a repair of the couplers which were then in use. If the respective railway companies who had bought the couplers which were covered by the patents in suit had the right to repair them to the extent of replacing knuckles that had been broken, then it is obvious that they had the right to employ the defendant company to make the knuckles for that purpose, and the latter company incurred no liability by so doing. The rule is well established that one who purchases a machine or mechanical contrivance consisting of several distinct parts which as a whole is covered by a patent has the right, by virtue of his purchase from the patentee, to repair a part of the machine or device which hap pens to be broken through accident or which becomes so far worn as to render the machine inoperative, provided the machine as a whole still retains its identity and what is done in the way of rendering it operative does not amount to reconstruction, and provided, further, that the part so replaced is not separately covered by a patent. The sale of a patented article by the patentee frees it from the grasp of the monopoly, and the purchaser may thereafter exercise the same dominion over it which he exercises over his other property. The right to thus repair a patented device is incidental to ownership. The fact that it is patented |