the present case, that the opinion of the Commissioner in Cochran's case was considered or was before them; but it does appear that, whether with or without examining that decision, they have in effect decided that a patent ought to issue in a class of cases in which the Commissioner and themselves had already decided that it ought not to issue.

"If the decision, while departing from the rule laid down by the Commissioner, had been adverse to applicant, he would, no doubt, have sought the Commissioner by appeal, to demand that the action of the board, in neglecting to conform to that of the Commissioner, be reversed. As, however, the decision is in his favor, he demands his patent, and insists that the board of examiners-in-chief are to settle for the examiners what is the law in patent cases,' even to the extent of ignoring the decisions of the Commissioner. * * * As the head of the office, responsible for its management and for the acts of his subordinates, charged by law with the execution of all acts and things touching the granting and issuing of letters patent, it is his right, it is his duty, when he has reason to believe that, by the action of any of his subordinates, a patent is about to issue which ought not to be granted, to arrest such issue, and to take such steps as in his judgment may be necessary to correct the error and secure the public from imposition. To say that any examiner, or board of examiners, refusing to be guided by his decisions or to obey his rules, might issue patents broadcast to those who were not entitled to them, and that, because there is no appeal as against the lucky applicant, the Commissioner is by law made powerless to avert the evil-nay, more, must himself sign the patents

which he knows ought not to issue-is to force upon this act a construction which is, in my opinion, the very reverse of that intended by the legislature.

"I have examined the remarks of Judge Dunlop in Snowden v. Pierce. Although expressing some views adverse to the opinion I have here maintained, this point was not, as it could not be, before him. What he says is simply obiter dictum, provoked apparently by the argument of counsel. The question, if there be one, is of an executive rather than a judicial character, and is for the Attorney General rather than for the courts.

"In the absence of other light upon this subject than that afforded me by the statute and the practice of the office, I have no hesitation in holding, that I have the power to withhold a patent at any stage of its progress, whenever facts arise which in my judgment constitute a bar to its issue. This is the view taken by Commissioner Foote, my immediate predecessor. In his annual report for 1868 he says: 'I have endeavored to provide some means for reviewing, briefly, favorable decisions before patents were issued upon them, but found that the force of the office was inadequate to such work in addition to the performance of other indispensable duties.'.

"In this case I have suspended the issue of a patent to Stephen Hull, and have remanded the case to the board of examiners-in-chief for re-examination, in the light of the decision of the Commissioner in the cases of John W. Cochran and John W. Orr." (Commissioners' Decisions, 1869, p. 68.)

221. PETITION TO SET FORTH REASONS OF APPEAL.-A petition in writing must be filed, signed by the party or

his authorized agent or attorney, praying an appeal and setting forth briefly and distinctly the reasons upon which the appeal is taken. (Patent Office Rules, July, 1870.)

222. FORM OF APPEAL FROM THE EXAMINER TO THE ExAMINERS-IN-CHIEF.

To the Commissioner of Patents.

SIR: I hereby appeal to the examiners-in-chief from the decision of the principal examiner, in the matter of my application for letters patent for an improvement in wagon brakes, which, on the 20th day of July, 1869, was rejected the second time. The following are assigned for reasons of appeal: [Here follow reasons.] LEMUEL LOOKUP.

223. FORM OF APPEAL FROM THE EXAMINER IN CHARGE OF INTERFERENCES TO THE EXAMINERS-IN-CHIEF.

To the Commissioner of Patents.

SIR: I hereby appeal to the examiners-in-chief from the decision of the principal examiner in charge, in the matter of the interference between my application for letters patent for improvement in sewing machines and the letters patent of Elias Coleman, in which priority of invention was awarded to said Coleman. The following are assigned for reasons for appeal: [Here follow reasons.] WILLIAM SYPHAX.

SEC.

XIII. Appeal to the Commissioner in Person.

SEC.

224. Appeal from examiners-in-chief. 230, Decisions upon questions of 225. Commissioner will not review

fact.

the action of his predecessor. 231. Case may be remanded to ex

224. APPEAL FROM THE EXAMINERS-IN-CHIEF.-If the applicant is dissatisfied with the decisions of the examiners-in-chief he may, on payment of the duty required

by law, appeal to the Commissioner in person. (Act of July 8, 1870, § 46.) All cases which have been acted on by the board of examiners-in-chief may be brought before the Commissioner in person, upon a written request to that effect, and upon the payment of the fee of twenty dollars required by law. (Patent Office Rules, July, 1870.)

225. A CASE DELIBERATELY DECIDED BY ONE COMMISSIONER WILL NOT BE DISTURBED BY HIS SUCCESSOR.-The only remaining remedy will be by appeal, in those cases allowed by law, to the supreme court of the District of Columbia sitting in banc. (Ib.) The Commissioner will not review the action of his predecessor, or of the appellate judge in the same case. (J. W. Orr ex parte, Commissioners' Decisions, 1869, p. 33.)

226. TIME OF HEARING.-All cases pending before the Commissioner will stand for argument at one o'clock on the day of hearing. If either party in a contested case, or the appellant in an ex parte case, appear at that time, he will be heard. (Patent Office Rules, July, 1870.)

227. MOTIONS.-Reasonable notice of all motions, and copies of the motion papers and affidavits, must be served upon the opposite party or his attorney; and in contested cases no motions will be heard in the absence of the other party, except upon default after due notice; nor will a case be taken up for oral argument after the day of hearing, except by consent of both parties. (Ib.)

228. LIMITATION OF ORAL ARGUMENTS.-Unless otherwise ordered before the hearing begins, oral arguments will be limited to one hour for each counsel. (Ib.)

229. NEW ASSIGNMENT.-If the engagements of the tribunal before whom the case is pending are such as to prevent it from being taken up on the day of hearing, a

new assignment will be made, or the case will be continued from day to day until heard. (Ib.)

230. DECISIONS TURNING UPON QUESTIONS OF FACT WILL NOT BE REVERSED UNLESS RENDERED WITHOUT OR AGAINST EVIDENCE. The appeal to the board of examiners, and to the Commissioner and judge, was given to determine disputed points of law, rather than to review mere questions of fact. Upon such questions the examiner is as likely to be right as the Commissioner. It is familiar law, that the verdict of a jury, or the finding of a judge upon submission, upon facts, will not be disturbed by the appellate tribunal, except in cases where the verdict or judgment is manifestly without evidence, or beyond a reasonable doubt against evidence. The mere fact that the appellate judge feels that if the question had been originally tried before him he would have come to a different conclusion from the lower tribunal, (no question of law being involved,) will not justify him in disturbing the judgment of that tribunal, where there was any evidence to sustain it. (Fawcett v. Graham, Commissioners' Decisions, 1869, p. 113.)

In the case of Blanchard v. Strain, the Commissioner says:

"The testimony is very voluminous, covering some three hundred and seventy-five pages of manuscript. The examiner in charge of interferences and the examiners-in-chief have both decided in favor of Strain. The question involved is purely one of fact, depending upon the credibility of contradicting witnesses.

"I cannot believe it was ever intended that in a case like this, where no legal question is involved, the parties should be able, by appeal, to compel four tribunals to