PUBLIC APPRECIATION AS EVIDENCE OF INVENTION-Continned.

ment of the court. *Robbins et al. v. Dueber Watch Case Manufacturing Company et al., 202.

2. PATENTABILITY-EXTENSIVE SALES-Where the patentability of a device is not clear, extensive sales may resolve the doubt of patentability in favor of an applicant. This, however, is an unsafe criterion and must be cautiously applied. Ex parte Flomerfelt, 59.

3. INVENTION-Extensive Use-Other Cause-Extensive use is only to be considered evidence of invention in doubtful cases, and it loses its force when attributable to another device used in connection with the alleged invention and which was useful and popular. *Dueber Watch Case Manufacturing Company et al. v. Robbins et al., 517.

PUBLIC APPRECIATION DOES NOT WARRANT ENLARGEMENT OF CLAIMS. See Construction of Specifications and Patents, 8.

PUBLIC USE. See Reissues, 1, 2.

PURCHASERS OF PATENTED ARTICLES FROM AN INFRINGER. See Infringement, 1.

RECEIVER. See Assignments, 2.

RECORD OF ASSIGNMENTS. See Assignments, 7, 8, 9.

RECORD OF COURT PROCEEDINGS. See Practice in the Patent Office.

REDUCTION TO PRACTICE. See Inoperative Devices; Interference, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 17, 18, 21, 22, 23, 31, 32, 33.

1. METHOD─As a rule, to reduce a method or process to practice the series of acts which constitute such method or process must be performed. Croskey v. Atterbury, 9.

2. DRAWING-An illustration of a device of doubtful purpose is not a reduction to practice. Dewey v. Colby, 12.

3. PROCESS-Actual reduction to practice of a process consists in the actual performance of the process. Making a device by means of which the process can be carried out is not such a performance, and is not therefore a reduction to practice. Croskey v. Atterbury, 437.

*

4. FILING OF APPLICATION-The filing of a completed allowable application for a patent for the invention is a constructive reduction to practice and is as effectual in a contest of priority as actual reduction to practice. (Porter v. Louden, 23 Wash. L. R., 689: Yates v. Huson, 24 Wash. L. R., 214, and the cases and authorities referred to in the opinions in those cases.) *Id.

5. SAME AMENDMENT—The filing of a complete application is a constructive reduction to practice, even though such application be subsequently amended, provided such amendment is made to secure conformity between parts of the application. *Id.

6. INTERFERENCE-Although a device was not commercially perfected and did not do as efficient work as later devices, yet, as it showed every feature of the invention in controversy and was adapted to perform the work for which it was intended and actually did such work, it is Held that such a device was a reduction to practice. Loewer v. Ross, 40.

7. EXECUTION OF SPECIFICATION-INCOMPLETE APPLICATION-Neither an executed specification nor an incomplete application nor anything except a complete allowable application can be regarded as a constructive reduction to practice. Phelps v. Hardy v. Gattman and Stern, 70.

REFEREE. See Trade-Marks, 19, 20.

REFERENCES. See Affidavits; Affidavit under Rule 75; Interference, 48, 49, 50, 51, 52.

REFUNDMENT OF APPEAL FEES.

FAILURE TO PROSECUTE APPEAL-A request for the return of an appeal fee where the appeal was not prosecuted denied, as the law establishes certain payments to be made upon filing certain papers, and this irrespective of whether the case is further prosecuted or not. Ex parte Borton, 99.

REHEARING. See Appeal to the Court of Appeals of the District of Columbia, 8, 9, 10, 11; Bill of Review; Interference, 25, 26, 40.

SURPRISE-APPLICATION-INTERPRETATION-An applicant's contention upon a rehearing that he was "surprised" by the interpretation put upon his application in the former hearing is without foundation, since the application itself was his evidence, and was examined like other evidence. Dewey v. Colby, 13.

REISSUES. See Particular Patents, 5, 6, 7, 13, 35.

1. RIGHTS OF PARTIES ARISING PRIOR TO APPLICAtion for REISSUE-ABANDONMENT—Whêre, after the issue of an original patent and before an application for the reissue of the same, it was shown that other parties were using the subject-matter not claimed, Held that the patentee has abandoned his right to a reissue to claim such matter by his laches in not applying for the reissue before the rights of other parties accrued. Loewer v. Ross, 40. 2. SAME-INFRINGEMENT-In determining the question of rights intervening after the grant of a patent and before an application for a reissue the Office does not decide whether any of the claims of the original patent are infringed. The question of infringement is not involved. Id.

3. MISTAKE ON Part of Office-REÊXAMINATION-Where a reissue application is filed without fee for the purpose of correcting a mistake made by the Office, Held that not only the mistake may be corrected, but that, if the Office chooses, a full reëxamination of the case may be made, as it would be improper for the Office to reissue a patent when it is known that a statutory bar exists. Ex parte Weaver, 49.

4. REISSUE TO BROADEN CLAIMS-ACQ IESCING IN REJECTION OF ORIGINAL CLAIMS-Where an applicant acquiesced in the limited construction put on his invention, and at no time during the prosecution of his original application suggested or intimated that the invention resided in the broad device now sought to be claimed in the reissue application, Held that the failure to make the claim in the original patent did not arise through inadvertence, accident, or mistake, and the reissue claim refused. Ex parte Bryant, 66. REISSUE WITHOUT FEE. See Reissues, 3.

REJECTED CASES. See Commissioner of Patents; Construction of Specifications and Patents, 2; Drawings, 1; Particular Patents, 34.

REJECTED CLAIMS. See Appeal to the Commissioner of Patents; Estoppel. REOPENING OF CASES AFTER DECISION BY COURT OF APPEALS. NEW EVIDENCE-Notwithstanding the presentation of evidence tending to establish a fact not before in the record, the Commissioner, in view of doubt as to his authority in the matter and also in view of the petitioner's remedy by bill in equity, will not reopen a case after it has been considered and decided by the Court of Appeals of the District of Columbia. Northall v. Bernardin, 15.

RES ADJUDICATA. See Interference, 3.

RESTRAINT OF TRADE. See Licenses, 4, 5.

RESULTS. See Construction of Specifications and Patents, 6; Invention, 19; Particular

Patents, 48, 91.

RIGHT TO PATENT. See Applications; Commissioner of Patents.

RIGHT TO REPAIR PATENTED ARTICLES. See Use and Sale of Patented Arti

cles, 3, 4.

SALE OF PATENTED ARTICLES. See Public Appreciation as Evidence of Incen

SPECIFICATIONS. See Construction of Claims, 1; Construction of Specifications and Patents 20, 26; Drawings, 2.

SPECIMENS. See Interference, 12.

STATE OF THE ART. See Construction of Specifications and Patents, 11; Contracts, 2; Suits for Infringement, 3.

STATUTORY REQUIREMENTS TO OBTAIN A PATENT. See Applications. STAY OF PROCEEDINGS. See Appeal to the Court of Appeals of the District of Columbia, 4, 8, 9, 10, 11.

SUBSEQUENT PATENT. Sec Infringement, 9, 32; Interference, 42.

1. VAN DEPOELE-SUSPENDED SWITCH AND TRAVELING CONTACT FOR ELECTRIC RAILWAYS-Nos. 424,695 AND 397,451 COMPARED-EARLIER AND LATER PATENTS TO THE SAME INVENTOR-Where a patent for improvements issued with a reference to a prior application and a disclosure of the broad original invention contained therein, it is not a bar to a subsequent patent for the broad invention issued pursuant to the said prior application. (Distinguishing the familiar rule repeated in Miller v. Eagle Mfg. Co., C. D., 1894, 147; 66 O. G., 845; 151 U. S., 186.) *Thomson-Houston Electric Company v. Elmira and Horseheads Railway Company, 122.

2. EARLIER AND LATER PATENTS—INFRINGEMENT-The grant of a later patent to defendants for a machine designed to accomplish the same result as that of the patents in suit raises the presumption that there is a substantial difference between them and that the latter is not an infringement of the earlier patents. *Illinois Steel Company v. Kilmer Manufacturing Company

et ..., 240.

3. Two APPLICATIONS-GENERIC AND SPECIFIC INVENTIONS-DELAY IN PATENT OFFICE-DIFFERent Dates of Issue-ValidITY—When a prior application for a generic invention has been delayed in the Patent Office without the fault of the applicant, the grant of a subsequent patent for a specific, distinct, and separate improvement upon the principal invention will not invalidate a patent subsequently issued upon the original application. (Miller v. Eagle Mfg. Co., C. D., 1894, 147; 66 O. G., 845; 151 U. S., 186; Thomson-Houston Electric Co. v. Winchester Ave. R. R. Co., C. D., 1895, 788; 73 O. G., 2155.) *National Machine Company v. Wheeler & Wilson Manufao- | turing Company, 259.

SUBSTITUTION OF MATERIAL.

SUBSTITUTION OF PARTS.

9, 10, 11.

See Invention, 21.

See Equiralents, 2; Infringement, 3, 10, 27; Invention,

SUITS FOR INFRINGEMENT. See Bill of Review; Corporations; Damages and Profits, 3; Demurrer, 3; Licenses; New Trial; Parties to Suit; Practice in the Courts; Priority of Invention, 3, 4.

1. INFRINGEMEnt-Benefits, TO WHOM ACCRuing—Recovering Profits—“In a suit in equity for the infringement of a patent, the ground upon which profits are recovered is that they are the benefits which have accrued to the defendants from their wrongful use of the plaintiff's invention, and for which they are liable, ex quo et bono, to the like extent as a trustee would be who had used the trust property for his own advantage. The defend

SUITS FOR INFRINGEMENT-Continued.

ants in any such suit are therefore liable to account for such profits only as have accrued to themselves from the use of the invention, and not for those which have accrued to another, and in which they have no participation." *Belknap et al. v. Schild, 210.

2. MISCONDUCT OF PATENT OWNER-The action of a patent owner in harassing purchasers with threats of litigation when no possible ground of action exists against them, even if the patent is valid, in attempting to dismiss his bill, whereby defendant, in order to prevent it, is compelled to file a cross bill, and in delaying the taking of evidence until after defendant begins the taking of testimony is not such as commends the cause to a court of equity. * American Fibre Chamois Company v. Port Huron Fibre-Garment Manufacturing Company et al., 366.

3. EXPERIMENTS-FAILURE -Presumption—When defendant at the hearing had ample opportunity and every inducement to produce a result equal to that of the complainant with devices known in the art prior to the production of the device of the patent sued on, and failed, the presumption, notwithstanding his explanation to the contrary, is that the prior art was not sufficient for the production of results as good as the patentee's. *A. B. Dick Company v. Henry, 377.

4. INFRINGEMENT--LICENSE-ESTOPPEL-The fact that defendant was a licensee cannot estop him from disputing the validity of the patent under which he takes his license in a suit for infringements charged to have taken place after the license was drawn, though in a doubtful case it might have considerable evidential force as an admission of validity. Dueber Watch Case Manufacturing Company et al. v. Robbins et al., 517.

5. INFRINGEMENT SUITS-LACHES-Mere delay in prosecuting infringers, unaccompanied by circumstances amounting to equitable estoppel, will not prevent a patent owner from maintaining suits for equitable relief. * Taylor et al. v. Sawyer Spindle Company, 546.

SUITS FOR INFRINGEMENT AGAINST THE UNITED STATES. See Use of Patented Inventions by the United States, 2.

1. SUIT TO RESTRAIN INFRINGEMENT-The patentee of an improvement in breechloading cannon brought suit against an officer of the United States Navy connected with the Bureau of Ordnance and having charge of the manufacture of cannon at a navy-yard for an alleged infringement of his patent, praying not only for an accounting and damages, but for an injunction restraining defendant and all persons acting under his authority from making the cannon alleged to infringe complainant's patent. Held that the suit was, in substance, one to prevent the making of breech-loading cannon of a certain character at the navy-yard, and that public policy and the rights of the Government would not permit such a suit to be maintained. (62 Fed. Rep., 584, reversed.) *Dashiell v. Grosvenor et al., 176.

2. INFRINGEMENT BY THE UNITED STATES-OFFICERS OF THE UNITED STATESThe United States having, by act of Congress, consented to be sued upon their contracts, may accordingly be sued by a patentee for their use of his invention under a contract made with him by the United States or their authorized officers. Belknap et al. v. Schild, 210.

3. SAME-SAME-But the United States have not consented to be liable to suits sounding in tort for wrongs done by one of their officers, though in the discharge of his official duties. They are therefore not liable to a suit for an

infringement of a patent, that being an action sounding in tort. *Id.

4. SAME-SAME-A public officer is not personally liable on a contract made by him in the line of his duty and on account of the United States and inuring to their benefit and not to his own; but he is personally liable to be sued for his own infringement of a patent. Id.

SUITS FOR INFRINGEMENT AGAINST THE UNITED STATES-Continued, 5. INFRINGINg Device-PROPERTY OF THE UNITED STATES-USE BY OFFICERS— PARTY TO SUIT-Where the infringing device was the property of the United States and held and used by them for the public benefit through officers, the United States were an indispensable party to the suit to enable the court to grant the relief sought. *Id.

SUPREME COURT OF THE DISTRICT OF COLUMBIA. See Injunction, 3. TECHNICAL TERMS. See Appeal to the Circuit Court of Appeals, 3, 4; Construction of Statutes; Designs, 4, 6; Infringement, 18, 19; Interference, 5.

1. "SURREPTITIOUSLY" OR "UNJUSTLY" IN SECTION 4920, REVISED Statutes— The meaning of the words "surreptitiously" or "unjustly" in section 4920, Revised Statutes, and prior statutes discussed. *Yates v. Huson, 278.

2. DETACHABLE CLIP-By a "detachable clip" is meant a removable clip, or one which is not positively attached by riveting or soldering. It is an attachment which accomplishes connection without creating union. *Bennett et al. v. Schooley, 455.

TESTIMONY. See Infringement, 29; Interference, 34, 39.

1. WITNESSES-IMPEACHING-UNCONTRADICTED TESTIMONY-When the court takes the responsibility of branding as unworthy of belief the uncontradicted testimony of reputable witnesses, it should have some reason to advance for a course so unprecedented. *American Tubing and Webbing Company v. Nicholls et al., 303.

2. DISCREPANCY BETWEEN-Prestatement-DECLINING TO ANSWER QUESTIONS AND PRODUCE Books for InsPECTION-The fact that an applicant in his testimony states his conception at an earlier date than in his statement, the fact that he declined to submit for general examination by opponent's counsel the sketch-book from which he states the drawings offered in evidence were cut, and the fact that he declined to answer some of the questions put to him do not constitute grounds for disregarding his testimony. Croskey v. Atterbury, 437.

3. UNDULY ENLARGING THE RECORD-It is bad practice to stuff the records of patent causes with prolix cross-examinations and irrelevant testimony. *Eastman Company v. Getz & Hoover, 655.

4. CREDIBILITY OF WITNESSES-Numerous witnesses of unquestioned credibility concurring in one matter may nevertheless be mistaken, particularly upon the question whether what is shown them as they testify is the identical thing which they saw more than two years before. In such a case in weighing the testimony the circumstances must be taken into account, considering that that which is conformable to experience is more probable than that which runs counter to it. Johnston v. Stone, 99.

TESTIMONY RELATIVE TO CHARACTER OF PARTIES. See Interference, 38. TITLE TO PATENT. See Assignments, 2, 7, 8, 9, 10, 11; Certified Copies from the Patent Office as Evidence.

ISSUING PATENT-ASSIGNMENT-QUESTION OF TITLE-This Office is not a proper place in which to try the issue as to ownership of a patent. It has no judicial functions for the determination of private rights. The numerous questions pertaining to ownership of an invention or a patent are for the courts to settle. It is not even mandatory on the Commissioner to issue a patent to the assignee of an inventor. (Ex parte Gallatin, C. D., 1892, 106; 59 O. G., 1104.) Ex parte McFarlane, 37.

TORT. See Suits for Infringement Against the United States, 3.

TRADE-MARKS.

1. TRADE NAME-DE LONG-HOOK AND EYE-NAME OF PERSON-Where the defendant used the name "De Long Hook and Eye Company" on their