In describing the operation of the machine, appellant states: "To put the machine in adjustment for operation, the sink should be supplied with a sufficiency of oil to fully charge the system, and leave a reserve to draw from to supply leakage."

Paragraph 5 of his claims is as follows: "In a fluid power transmission device, the combination with a set of injecting pumps and a set of receiving pumps, the former adapted to be connected with the power to act as drivers, and the latter with the load or driven mechanism, and act as motors, of an interposed valve plate having transmission ports, means connected with the pumps for mounting, rotating, and reciprocating them collectively, and provisions connected with the circulatory channels for replenishing the waste of the circulating medium resulting from leakage or otherwise, substantially as specified."

In paragraphs 8, 9, 10, and 11 of the original claims, it was referred to as means for replenishing waste in the circulation.

* * *

In 1902 new claims were inserted by appellee, in which it is again referred to as means for "replenishing waste of the circulating medium resulting from leakage or otherwise,” “to replenish wasted circulation," and "replenishing in the circulation." In 1904 a new claim was inserted as follows: "A power transmission device of the kind described fluid transmission conduits connecting said sections, an injecting device connected with said transmission conduits, and a source of fluid supply for replenishing waste in the circulation, arranged and adapted to operate as and for the purpose specified."

This was the condition of appellee's claims and specifications when appellant came into the field, and when the Primary Examiner notified appellee to make the claims here in issue. It is clear that if appellee had not, prior to this, disclosed in his claims, specifications, or drawings some conception of the thing in issue, he would be estopped to thereafter claim it. Some months after this notice was given, appellee filed additional claims, stating at the same time that he did not desire to make the claims suggested at that time. In these additional claims he refers to "a chamber for receiving any fluid which may

Opinion of the Court.

[37 App. leak through the joint between the barrel and the valve plate," "a chamber for receiving any fluid which may leak out of the circulating space, and a return channel leading from said chamber to the circulating space," "a chamber for receiving any leakage of fluid from said confined spaces," "a chamber for collecting any fluid leaking out of said confined space, and a replenishing channel leading from said chamber to the suction side of said confined space," "a chamber adapted to receive any leakage of the operating fluid, and a replenishing channel leading from said chamber to the spase containing the operating fluid," "a chamber for receiving any leakage of the operating fluid, and a replenishing channel for leading the fluid from such chamber to the suction or lower pressure portion of the operating fluid," and "a chamber for receiving the leakage of the operating fluid, and a valved replenishing channel leading from said chamber to the suction portion of the operating fluid."

In May, 1906, the application was amended by adding certain additional claims in which it was described as "a chamber for receiving any leakage from that part of the device which is under pressure, a valved connection from said receiving chamber to each of the said channels," and "a chamber for receiving any fluid which may leak from that part of the device which is under pressure, a connection from said chamber to the lowpressure part of the device."

In March, 1907, appellee erased certain of the above claims, and inserted additional claims, in which he describes "a fluid power transmission device, the combination with driving mechanism for imparting motion to the fluid, and driven mechanism adapted to be operated by such moving fluid, of a chamber located below the space in which the fluid circulates, and arranged to receive any leakage from the circulating space, and a replenishing channel for leading the fluid upward from said chamber back to the circulating space."

It will be observed that when appellant entered the field, appellee had apparently no conception of the necessity of conserving the leakage. His idea was to provide against leakage

by replenishing the supply of oil in the tank. It is insisted by counsel for appellee that the word "replenishing" is comprehensive enough to convey his conception of means for the collection of leakage; but, in the absence of anything in the context to indicate such a meaning, we cannot attribute this intention to appellee. In fact, the claims and specifications of appellee, up to the date of appellant's entry into the field, clearly indicate the contrary.

When we consider appellee's refusal for more than two years to make the claims suggested, and his failure to embrace the idea in amendments during that period, it is apparent that he had no conception whatever of the invention embraced in the claims in issue until after appellant entered the field. Even then he was unable to so amend his claims as to intelligently express anything like a clear conception of the thing here in issue.

The law is well settled that amendments will only be permitted to relate back to the date of the filing of the original application, where they can clearly be sustained on the claims. and specifications as originally made. The law does not permit such an enlargement of the original specifications as will interfere with other inventors who have acquired intervening rights. "Courts should regard with jealousy and disfavor any attempts to enlarge the scope of an application once filed, or of a patent once granted, the effect of which would be to enable the patentee to appropriate other inventions made prior to such alteration, or to appropriate that which has, in the meantime, gone into public use." Chicago & N. W. R. Co. v. Sayles, 97 U. S. 554, 24 L. ed. 1053. The rule is the same as in reissue cases with respect to intervening rights. A patentee cannot, in a reissue application, so broaden his claims as to include an invention made subsequent to the grant of his patent. Newton v. Furst & B. Co., 119 U. S. 373, 30 L. ed. 442, 7 Sup. Ct. Rep. 369; White v. Dunbar, 119 U. S. 47, 30 L. ed. 303, 7 Sup. Ct. Rep. 72; Brown v. Davis, 116 U. S. 237, 29 L. ed. 659, 6 Sup. Ct. Rep. 379; Miller v. Bridgeport Brass Co. 104 U. S. 350, 26 L. ed. 783; Topliff v. Topliff, 145 U. S. 156, 36 L. ed. 658, 12

Opinion of the Court.

Sup. Ct. Rep. 825; Giant Powder Co. v.
Works, 98 U. S. 126, 25 L. ed. 77.

[37 App

California Powder

It is urged by counsel for appellee that the question that the claims in interference do not show the same invention as that shown by appellee in his original application was not raised in the Patent Office, and therefore cannot be advanced for the first time in this court. In Lecroix v. Tyberg, 33 App. D. C. 586, we said: "It is also urged that the Commissioner erred in awarding priority of invention to Tyberg on count 4, because the applications of the respective parties, so far as this count is concerned, do not show the same invention. This question cannot be raised for the first time at this stage of the proceeding. It should have been raised by appropriate motion before the Patent Office, and brought here on appeal." This court has also held that it is incumbent upon a litigant to raise this question before the Primary Examiner, as we will not permit a party to try his case backwards. Cutler v. Leonard, 31 App. D. C.

297.

But this strict rule cannot be here invoked, for the reason that appellant seasonably filed a motion which we think is broad enough to bring the issue before us. When this case was pending before the examiner of interferences, appellant filed a motion to dissolve the interference upon the ground of laches and estoppel, and also upon the express allegation that "said Williams has no right to make the claims of the issue, because at and before the date of making said claims, intervening rights had accrued." Appellant "further moved that the files and papers be transmitted to the Primary Examiner for determination of the motion for dissolution, and that the interference proceedings be suspended pending the final determination thereof." This motion the Examiner of Interferences refused to transmit to the Primary Examiner, and an appeal was taken to the Commissioner, where the ruling of the Examiner of Interferences was sustained. The matter was referred back to the Examiner, the Commissioner holding that the motion could be considered on final hearing.

This motion, we think, is sufficient to raise the issue, since

the question presented is not one of fact, but one of disclosure. Appellee in his original specification and the amendments thereof up to the time appellant entered the field, totally failed to make any claim for means for collecting leakage. If appellee had made any such claim there would be presented a question of fact as to its operation, but in the absence of any such claim, the sole question here is whether he can now claim something which was not originally disclosed. Upon this point there can be no room for doubt that the motion to dissolve was broad enough to permit appellant to contest appellee's right to make the claims in any or all of the tribunals through which the cause has come by appeal.

The decision of the Commissioner is reversed, and the clerk is directed to certify these proceedings as by law required. Reversed.

IN RE ELLIS.

PATENTS;

PATENTABILITY; EQUIVALENTS; PROCESSES; SPECIFICATIONS AND
DRAWINGS; EVIDENCE; PRESUMPTION.

1. The object of the patent laws is to secure to the inventor the full rewards of his invention; and he is not limited to the use of one specific substance, but his patent covers all known equivalents.

2. In compositions of matter, substances which, at the granting of the patent, were known as capable of serving the same purpose in the composition as the ingredients actually employed, become thereby their chemical equivalents; but the specifications and claims must be broad enough to cover them.

3. The claims of a patent must be construed in the light of its specifications and drawings, and may be limited, but not enlarged, by them.

4. The range of equivalents depends upon the nature and extent of the invention. If it be broad and primary, the range of equivalents will be likewise broad; if it be but an improvement over the prior art, the range of equivalents will be correspondingly restricted.