will render it possible to approximate to the truth. It may be said, in general, that in cases falling under the first subdivision, the evidence necessary to establish priority should be substantially the same as in cases of the first class, to wit, that he is the first inventor who has first reduced the invention to practice. As to the second and third subdivisions, it may be safely asserted that the presumption is that the workman is the inventor in the former case, and that the employer is in the latter.

When workmen are employed in large establishments, it is a natural and common mistake for employers to suppose that they are entitled to the brain-work as well as the hand-work of their employees; that if a valuable invention is made, as in some measure it is the product of their capital and of the mind of their servant, they have acquired such a title to it as to be able to consider themselves the inventors. This is especially the case when the employer has conversed with the workmen during the progress of the work, or has exhibited any interest in its successful completion. They confound the supply of material with the supply of ideas, and sometimes confidently claim to be the inventors of mechanism which they would find it difficult to describe and impossible to ope

rate.

But where a man has conceived an idea and given to it more or less development, and employs a mere workman to put it into shape, it is obvious that much confusion is likely to follow, proportioned to the mechanical skill of the workman and the lack of it in the projector. So many suggestions and hints may be furnished by the workman, that at last he ceases to remember the parentage of the underlying idea, and fancies that the whole

machine is the product of his own invention. It must be rare, however, in such cases, that the labors of the mechanic or model-maker can raise him to a higher rank than that of joint inventor with him who has the original conception, while, in the great majority of cases, the safer rule is undoubtedly that adopted by the Supreme Court of the United States in the late case of Agawam Woolen Company v. Jordan, (7 Wall., 583,) where it is said: "When a person has discovered an improved principle in a machine, manufacture, or composition of matter, and employs other persons to assist him in carrying out that principle, and they, in the course of experiments arising from that employment, make valuable discoveries ancillary to the plan and preconceived design of the employer, such suggested improvements are, in general, to be regarded as the property of the party who discovered the original improved principle, and may be embodied in his patent as a part of his invention." (Foster v. Fowle, Commissioners' Decisions, 1869, p. 35.)

SEC.

336. Testimony received by agreement of parties.

337. Testimony taken on former interference.

338. Assignment of time.

SEC.

339. Postponement.

340. Form of notice of taking testimony.

341. Form of deposition.

342. Form of certificate.

318. COMMISSIONER MAY ESTABLISH RULES FOR TAKING AFFIDAVITS AND DEPOSITIONS.-The Commissioner may establish rules for taking affidavits and depositions. (Act of July 8, 1870, § 43.)

319. BEFORE WHOM TAKEN.-And such affidavits and depositions may be taken before any officer authorized by law to take depositions to be used in the courts of the United States, or of the State where the officer resides. (Ib.)

As to what officers are authorized to administer oaths vide supra, p. 318.

320. CLERK TO ISSUE SUBPENA.-The clerk of any court of the United States for any district or Territory wherein testimony is to be taken for use in any contested case pending in the Patent Office, shall, upon the application of any party thereto, or his agent or attorney, issue subpena for any witness residing or being within said district or Territory, commanding him to appear and testify before any officer in said district or Territory, authorized to take depositions and affidavits, at any time and place in the subpena stated. (Ib., § 44.)

321. PENALTY FOR REFUSING TO APPEAR AND TESTIFY. If any witness, after being duly served with such subpena, shall neglect or refuse to appear, or, after appearing, shall refuse to testify, the judge of the court whose clerk issued the subpena may, on proof of such neglect

or refusal, enforce obedience to the process, or punish the disobedience as in other like cases. (Ib.)

A person who, after being regularly served with a subpena, refuses or neglects to attend the trial, may be proceeded against by attachment. It is presumed also that an action on the case may be maintained against him; but before an attachment will be granted it must appear that the subpena was personally served upon him a reasonable time before the trial, and that the fees allowed by law were paid or tendered to him.

In the courts of the United States witnesses are entitled to the sum of one dollar and fifty cents for each day's attendance at the court, to the further sum of five cents per mile for traveling from their place of abode to the place where the court is holden, and to the like allowance for returning. (Act of February 26, 1853, c. 80.) The sum, therefore, which it is necessary to tender upon serving a subpena is one dollar and fifty cents for one day's attendance, and ten cents for each mile of distance between the residence of the witness and the place where the court is to be held. (Conklin's Treatise, 386.)

322. RULES OF THE PATENT OFFICE FOR TAKING AND TRANSMITTING EVIDENCE. -In interference, extension, and other contested cases the following rules have been established for taking and transmitting evidence:

323. NOTICE.-First. That, before the deposition of a witness or witnesses be taken by either party, due notice shall be given to the opposite party, as hereinafter provided, of the time and place when and where such deposition or depositions will be taken, with the names and residences of the witness or witnesses then and there to be examined, so that the opposite party, either in person

or by attorney, shall have full opportunity to crossexamine the witness or witnesses: Provided, That if the opposite party or his counsel be actually present at the taking of testimony, witnesses not named in the notice may be examined, but not otherwise. And such notice shall, with proof of service of the same, be attached to the deposition or depositions, whether the party cross-examine or not; aud such notice shall be given in sufficient time for the appearance of the opposite party.

324. CERTIFIED COPY OF CAVEAT.-Second. That, whenever a party relies upon a caveat to establish the date of his invention, a certified copy thereof must be filed in evidence, with due notice to the opposite party, as no notice can be taken by the office of a caveat filed in its secret archives.

325. EVIDENCE TO BE SEALED, &c.-Third. That all evidence, &c., shall be sealed up, entitled upon the envelope with the name of the case in which it is taken, and addressed to the Commissioner of Patents by the person before whom it shall be taken, and so certified thereon, and forwarded, immediately upon the close of the examination, to the Patent Office.

326. EX PARTE TESTIMONY.-Fourth. In cases of extension, where no opposition is made, ex parte testimony will be received from the applicant; and such testimony as may have been taken by the applicant prior to notice of opposition shall be received, unless taken within thirty days after filing the petition for the extension; Provided, That immediately upon receiving notice of opposition the applicant shall give notice to the opposing party or parties of the names and residences of the witnesses whose testimony has thus been taken.