through standards and instead of applicant's wedge-plates for effecting vertical adjustment Sovereign shows an inner ring supported between bolts which pass through the rim of the outer ring.

The Examiners-in-Chief further say:

In view of the mechanical arrangement disclosed by Sovereign it is not seen that it would involve invention to merely position a horizontally adjustable plate upon the vertical adjustable wedge support of Hill and to pivot to such plate one end of a yoke bearing member, such support, plate and pivot to be duplicated also at the other end of the yoked member. Accordingly we shall recommend a further rejection of the appealed claims upon Hill, in view of Sovereign.

It seems to me that the Examiners-in-Chief are right in so far as they refer to the mere positioning of the horizontally-adjustable plate upon the vertical adjustable wedge-support of Hill; but when the pivoting of Sovereign is added the result is a useful structure which differs from both Sovereign and Hill. Claims 1, 2, 3, and 4 are therefore deemed allowable.

In urging claims 5, 6, and 7, which do not include the pivotal connections of the bearings, applicant's attorneys point out that Hill has four pairs of wedge-plates for each bearing, whereas applicant has but one pair, and argue that therefore it is not true that applicant's construction may be attained by resting Sovereign's yoke and bearings upon two of Hill's wedge-plates.

I do not think that this argument applies with propriety to claim 5, in which the number of wedge-plates for supporting each bearingplate is not defined. Claim 5 is therefore deemed to be unpatentable.

Claim 6, in view of the drawings and the language of the specification, seems, however, to be clear upon this point. It is directed to the specific construction illustrated in Figure 3, as indicated in applicant's brief, and is deemed to be allowable.

Claim 7 differs from claim 6 only in adding the other bearing and the connecting-yoke. Thus there are two bearings connected by a yoke, one of the bearings being supported upon a construction such as is defined in claim 6. This seems to be clearly an aggregation and is unpatentable.

In view of the ruling of the Court of Appeals of the District of Columbia in in re Mattullath (C. D., 1912, 490; 179 O. G., 853; 38 App. D. C., 497) and in Moore, Commissioner of Patents, v. U. S., ex rel. Chott (C. D., 1913, 427; 192 O. G., 520; 40 App. D. C., 591) that an applicant has the right to appeal from any official action of the Commissioner of Patents which is decisive of his right to a patent or which, in effect, operates as a rejection of the claims of the application it is not deemed necessary to require that a second appeal be taken in this case, as indicated in ex parte Shaw (C. D., 1907, 222; 129 O. G., 2857) and in ex parte Noyes (C. D., 1910, 147; 158 O. G., 227.)

The decision of the Examiners-in-Chief is reversed as to claims 1, 2, 3, 4, and 6, which should be allowed, and affirmed as to claims 5 and 7, which should be rejected.

HENDERSON And Cantley v. KINDERVATER.

Decided January 16, 1914.

1. APPLICATIONS-RENEWAL

203 O. G., 601.

SECTIONS 4897 AND 4894.

Held that sections 4897 and 4894, as amended by the act of March 3, 1897, relate to different classes of cases and that an application which has been forfeited by failure to pay the final fee within six months from the date of allowance may be renewed at any time within two years from the date of the notice of allowance.

2. INTERFERENCE-FORFEITED APPLICATION-RENEWAL-CONSTRUCTIVE REDUCTION TO PRACTICE.

Where the application of K. was filed March 25, 1908, allowed April 30, 1910, and renewed March 19, 1912, Held that K. is entitled to the filing date of his original application as a constructive reduction to practice.

APPEAL from Examiners-in-Chief. Motion to dismiss.

SUPERHEATER.

Messrs. Briesen & Knauth for Henderson and Cantley.
Mr. J. Hanson Boyden for Kindervater.

FRAZIER, First Assistant Commissioner:

This case is on appeal before me by Henderson and Cantley from the decision of the Examiners-in-Chief awarding priority to Kindervater, also on a motion of Kindervater to dismiss the appeal.

The application of Henderson and Cantley was filed September 27, 1911. Kindervater's application was filed March 25, 1908, was allowed on April 30, 1910, and renewed March 19, 1912.

Numerous reasons of appeal are assigned; but the principal one discussed in the brief is that Kindervater is not entitled to the original filing date of his application, since it was not renewed within one year from the date of the notice of allowance, and therefore the application is abandoned.

Kindervater's motion to dismiss is based on the ground that this question was not raised in the first instance before the Examiner of Interferences, and therefore should not have been considered by the Examiners-in-Chief and should not now be considered.

Obviously Kindervater's present application cannot be regarded as abandoned, because such application was regularly filed on March 19, 1912. Under the provisions of section 4897, Revised Statutes,

an applicant whose application has been allowed but the fee not paid within six months from the date of allowance has the right—

to make an application for a patent for such invention or discovery the same as in the case of an original application.

If the contention of Henderson and Cantley should be sustained, it would not mean an award of priority to Henderson and Cantley, as urged by them, but would only mean that Kindervater is not entitled to the date of filing of his original application as a constructive reduction to practice, since he is obviously entitled under any circumstance to the date of March 19, 1912, as the date of constructive reduction to practice.

The contention should undoubtedly have been raised before the Examiner of Interferences, for if appellants' contention be right the effect would be to make Kindervater the junior party and he would be entitled to take testimony.

The facts upon which the contention is based, however, are apparent on the record, and it is not seen that they can be refused consideration, even though raised for the first time before the Examinersin-Chief. Kindervater's motion to dismiss therefore must be denied.

Appellants' contention is based on the theory that when section 4894 was amended by the act of March 3, 1897, to limit the term within which applications must be amended to one year, this, by implication, restricted the time within which an application could be renewed under section 4897 to one year from the date of the notice of allowance unless it be shown that the failure to amend within that time was unavoidable, the provision that the application must be filed within two years from the date of allowance merely fixing the time beyond which the Commissioner could not hold that the delay was unavoidable.

Το my mind the obvious answer to this argument as to the amendment of section 4897 by implication is that the section itself was not amended. If Congress had intended to limit the time within which a renewal application could be filed as a matter of right to one year, section 4897 itself would have been amended. The uniform construction which has been placed upon sections 4897 and 4894 by this Office is that they relate to different classes of cases and that section 4897 means exactly what it says-namely, that an application which has been forfeited by failure to pay the final fee within six months from the date of allowance may be renewed at any time within two years from the date of the notice of allowance.

The courts have always held that where a specific time is fixed within which an action might be taken the applicant loses no rights by availing himself of the entire time. (United States v. American Bell Telephone Company, C. D., 1897, 442; 79 O. G., 1362; 167 U. S.,

224; Crown Cork & Seal Company v. Aluminum Stopper Company, C. D., 1901, 450; 96 O. G., 2573; 108 Fed. Rep., 845.)

The Patent Office has uniformly construed section 4897 as giving an applicant two years within which to file a renewed application, and a large number of patents have been granted on renewed applications filed more than a year after the notice of allowance. It is well settled that where one of the executive departments has uniformly construed a statute in a certain way such action is entitled to great weight in determining the proper construction to be given that statute. (United States v. Johnston, 124 U. S., 236-253; Bate Refrigerating Company v. Sulzberger, C. D., 1895, 233; 70 O. G., 1633; 157 U. S., 1-34.)

Under the construction which Henderson and Cantley contend should be given to section 4897 these patents would be invalid. Even if the renewed applications be considered as valid applications, but not entitled to the benefit of the original filing dates, many of these patents would be invalid by reason of the fact that the renewal was more than two years after the device was in public use or described in a patent or other printed publication, which would not have been the case with reference to the original filing dates.

While the contention which is now made as to the construction of section 4897 was raised in Bogen v. Leonard, (100 MS. Dec., 300,) which is cited by counsel for Kindervater, it was not specifically passed upon. In that case Leonard's application, which was renewed, was a division of a former application, which matured into patent before the renewed application was filed. Bogen was involved in the interference on a patent, and he did not contend that he was entitled to an award of priority, since he did not allege a date of conception prior to the filing of Leonard's original application, but contended that judgment should be given against Leonard. All the tribunals of the Office held that this was a question which Bogen was not entitled to urge, since it was not material to his right to a patent.

In the case of Cutler v. Leonard (C. D., 1908, 483; 136 O. G., 438; 31 App. D. C., 297) the court held that Leonard was entitled to the benefit of his original application, although the renewal was not filed for more than a year after the notice of allowance. Although the specific point here raised does not appear from the decision to have been raised, the court said:

In the present case the renewal application was filed ten months before the expiration of the two years within which it might have been filed. The statute, it will be observed, confers upon the applicant “a right to make an application for a patent for such invention or discovery the same as in the case of an original application" within two years after the allowance of the original application. This right can be taken away only by a finding of abandonment, which,

the statute ordains, must be determined as a question of fact. Where an affirmative right is conferred by law, we think a finding of abandonment must be predicated of facts and circumstances warranting such a finding and not upon mere presumption.

It is also alleged that the Examiners-in-Chief erred in not holding that the Commissioner of Patents should take steps to consider the question of actual abandonment by Kindervater.

This matter was fully considered by the former Commissioner on an appeal from a decision of the Examiner of Interferences denying Henderson and Cantley's motion to be allowed to take testimony. Rule 144 provides that cases deliberately decided by one Commissioner will not be reconsidered by his successor except in accordance with the principles which govern the granting of new trials. This rule is clearly applicable here. No showing whatever has been made except that which was before the former Commissioner.

It is held that Kindervater is entitled to the filing of his original application as a constructive reduction to practice and that priority was properly awarded to Kindervater, since the date of conception alleged by Henderson and Cantley was subsequent to Kindervater's original filing date.

Kindervater's motion to dismiss the appeal is denied and the decision of the Examiners-in-Chief is affirmed.

RUSBY v. CROSS.

Decided November 21, 1913.

204 O. G., 319.

INTERFERENCE-PRIORITY-RES ADJUDICATA,

Where after a decision in favor of R. in an interference involving applications of R. and C. a second interference was declared between the same application of R. and a patent of C. having an earlier filing date, the issue of which was clearly readable upon the application of C. involved in the prior interference, Held that priority in the second interference was properly awarded to R., as the question was res adjudicata between R. and C.

APPEAL from Examiners-in-Chief.

REGULATOR FOR GAS-SUPPLY SYSTEMS.

Mr. A. B. Stoughton for Rusby.

Messrs. Barthel & Barthel and Mr. Arthur E. Merkel for Cross.

EWING, Commissioner:

This is an appeal by Rusby from the decision of the Examinersin-Chief reversing the decision of the Examiner of Interferences awarding priority to Cross.