terference. Also the affidavits on which the motion was based were those of some of the former witnesses, alleging that they had been misled, and due diligence in obtaining the newly-discovered evidence was shown.

In the previous interference between Mrs. Hibbard and Richmond judgment of priority in favor of the former was based upon the testimony of the following witnesses, viz: George W. Hibbard, her husband, William E. Stoodley, J. F. Stoodley, Susan M. Hibbard, Abby L. Stoodley, A. E. Lytle, J. N. Pease, Charles McClelland, Clarence Nichols, Susan Stoodley, and John A. Smith. Hibbard and his wife, her mother, Susan Stoodley, her father, Johnson F. Stoodley, and her niece, Abby L. Stoodley, all testified in the former interference that Mrs. Hibbard devised and completed the invention in controversy on the 10th day of February, 1874. The subject-matter in issue is declared to be "a duster made of feathers with their ribs removed," and it is alleged that upon the day mentioned Mrs. Hibbard told her associates in the shop at Geneva how to accomplish this result by splitting them with a knife, and that after suggesting the idea she helped split the feathers with a jack-knife and her father split them with a spoke-shave. Four of these witnesses, Hibbard, his wife, her father, and her mother, fixed the 10th of February, 1874, as the date on which this invention was made by Mrs. Hibbard by reason of the fact, as Mr. Hibbard states, that the first feather duster was made on the same day it was suggested by Mrs. Hibbard, and was on the 11th taken to John A. Smith, an attorney at Geneva, Wisconsin, for the purpose of obtaining information as to whether a patent could be obtained upon such an invention. All but Hibbard, when asked how they fixed the date, referred to the 10th of February, and as "Mr. Smith's date." This Mr. Smith, when he came to testify, alleged that on the 11th, 12th, or 13th of February, 1874, Hibbard came to him with the feather duster and asked if he thought it could be patented; and that on the 15th of February he wrote a letter to Munn & Co., of New York, asking information on this subject. The most important item of the newly-discovered testimony consists in the production of the letter that Smith wrote to Munn & Co., above referred to, and the admission of Smith that he was mistaken as to the date of that letter at the time he gave his former testimony. The letter bears no date, but that it was received in the latter part of March, 1874, by Munn & Co., of New York, is established by clear and undisputed evidence. That it was written a few days before, and was the first letter written by Smith to Munn & Co., is established by Smith's own testimony and by the strong intrinsic evidence borne by the letter itself. This intrinsic evidence consists in the fact that the name of the writer and his place of residence is written in full both at the beginning and end of the letter; that the invention is fully described, precluding the idea that a previous description had been given, and that the writer asked questions regarding the protection to be obtained by a caveat, applica

tion, or a patent entirely inconsistent with any previous information on those subjects. It was also established by undisputed testimony that the first model duster sent to and received by Munn & Co. was forwarded in March, and not in February. If the duster first given by Hibbard to Smith to be sent to New York was not the model finally sent, then the evidence does not show when such model was received by Smith. There are two other witnesses who helped to fix the date of the invention by Mrs. Hibbard as the 10th of February, 1874, and whose testimony has again been taken. They are the brother and niece of Mrs. Hibbard. The brother in the first proceeding alleged that he saw a split-feather duster at the Hibbards about the 10th or 11th of February, 1874, and fixes the date from the fact that he had been working in some adjoining town and had returned home about that time. Documentary evidence is now produced in addition to his own statement showing that he was mistaken as to those facts, and that he was not at Geneva at the time alleged. The niece, who formerly testified that she was visiting Mrs. Hibbard on the 10th of February, 1874, now admits that that date was suggested to her by another person. In regard to the testimony of the other witnesses in behalf of Mrs. Hibbard, it may be said that Lytle testifies to an admission made by Richmond that the invention was that of the Hibbards. Pease relates what Hibbard told him once about the invention having been made by Mrs. Hibbard, but cannot tell when the conversation took place, but thinks it was in February, 1874. The testimony of Nichols consists of hearsay, immaterial admissions made by third parties, and McClelland's testimony is also immaterial.

There has been submitted in addition to the above new testimony the testimony of others, some of which was introduced at the former hearing, showing that the Hibbards and Stoodleys admitted this invention to be Richmond's. There is also the evidence of one or two witnesses that Richmond admitted the invention to be the Hibbard's; but the preponderance of proof in regard to the matter of these admissions is greatly against the Hibbards. In behalf of Richmond it has all along been established through all these proceedings by unimpeached and unquestionable testimony that he conceived this invention in February, 1874, and reduced it to complete and successful practice between the 14th and 20th of that month.

It is not necessary, in view of all the testimony, to take the ground that the Hibbards did nothing about this invention, nor knew of it, until some time in March, 1874; but it is evident that the invention was not made by them, or either of them, on the 10th of February, 1874.

I am compelled, in view of all the newly-discovered testimony adduced, which entirely destroys the main ground upon which the patentee rested in the prior interference and seriously affects the credibility of the principal witnesses in her behalf, to reverse the decision of the Examiners-in-Chief and awarded priority to Gilbert M. Richmond.

Du Bois v. MCCLOSKEY.

Decided May 8, 1880.

17 O. G., 1158.

I. The mere circumstance that testimony was taken pending the decision of a motion to dissolve the interference on the ground that there was an irregularity in the declaration of the same is no ground for reopening the interference for the purpose of considering such testimony.

2. Motions do not necessarily effect a stay of proceedings in interferences. To do this they should be accompanied by a petition, and at or before the hearing of said motion an order should be entered granting or refusing the petition.

3. Although the original motion to dissolve was accompanied by a request to suspend the taking of testimony, which request was not acted upon, it cannot afford grounds for reopening the interference, which was dissolved because of an irregularity in the declaration.

MOTION to reopen interference.

PLUMBERS' TRAPS.

APPLICATION of Fred. N. Du Bois filed March 8, 1878. Patent granted to John McCloskey October 21, 1879.

Mr. Rodney Mason for Du Bois.

Mr. James A. Whitney for McCloskey.

DOOLITTLE, Acting Commissioner:

Motion is made to reopen this case in view of the fact that pending a motion to dissolve, and while the case was on appeal to the Commissioner from the decision of the Examiner of Interferences, the taking of testimony was proceeded with and completed on behalf of Du Bois, which course ought not to have been pursued, as said motion operated as a stay of proceedings in the case.

This interference was dissolved in view of an irregularity in declaring the said interference, it having been held that a previous patent of Du Bois described the same invention, and any claim made by him to that invention should be by a reissue application, so that, however correct or incorrect may be the point now taken in behalf of McCloskey, the in. terference could not be reopened and priority decided upon the testimony adduced, whether regularly or irregularly taken.

It may be stated, however, as a practice that should be followed in all contested cases before this Office, that the mere making of a motion of any sort does not necessarily stay the proceedings in the case; otherwise, parties so inclined could, by simply serving and filing of motions, prolong an interference indefinitely, much to the prejudice of the opposing party. Motions to operate as a stay of proceedings should be accompanied by a petition to that effect. An order should then be entered at or before the hearing of said motion granting or refusing the petition. It may be stated that a request to suspend the taking of testimony was part of this original motion to dissolve, but that request

was overlooked in deciding the motion. It cannot, however, have any effect on the reopening of this interference, as it was dissolved, as above stated, on entirely different grounds.

The motion is denied.

EX PARTE EMERSON.

Decided June 14, 1880.

17 O. G., 1451.

1. The decisions of the courts afford no warrant for a practice which would require an inventor, in order to secure protection, to claim in a single patent or in a reissue of the same all the inventions which he may have there shown or described. 2. A distinction is to be made between subjects which are indicated in the specification and those specifically pointed out in the claims of a patent as the invention for which protection is sought and such as are merely there described or shown. The former and not the latter constitute the invention patented. The intention upon the part of the applicant or patentee is to be observed.

3. Where an inventor has pending at the same time two applications and a patent is granted upon the one last filed, in which is shown or described but not claimed an invention which is or may be claimed in the application first filed, the first application will, in the absence of anything to the contrary, be the proper one in which protection for such invention may be secured.

4. Rule 91 of Office Practice cannot apply in such a case, for it is not to be presumed that an inventor filed a second application for the purpose of claiming, and omitted to do so through inadvertence, accident, or mistake, what he might have claimed in the first application.

APPEAL from Primary Examiner.

REHEARING.

REAPING-MACHINE.

APPLICATION of Daniel L. Emerson filed July 11, 1876.

Mr. H. A. Seymour for applicant.

MARBLE, Commissioner:

On the 13th day of December, 1879, my predecessor in office rendered a decision upon the matter involved in this appeal. In such decision the following statement of the case was made:

On the 11th day of July, 1878, Emerson filed an application for an improvement in reaping-machines. Afterwards-viz, on the 19th of April, 1879-he filed an application showing, but not claiming, the subject-matter in controversy. The latter application was patented September 9, 1879. Subsequently he inserted by amendment in the earlier application the claims now under consideration. The Examiner rejects the application on the patent already granted, suggesting that applicant can only obtain those claims in a reissue of that patent. The applicant appeals from his decision.

A motion was subsequently made before him for a rehearing of the case, and on April 13, 1880, such motion was allowed. The grounds of the motion are as follows, viz:

1. The decision involves an error of law in holding that the simple publication of an invention in a patent is a bar to the grant of a patent for such subject-matter filed prior to the application on which the patent was granted.

2. The decision involves an error of law and fact in holding that the claims in question are equally appropriate to both the first and second applications.

3. The decision involves an error of law and fact in holding that the claims to the subject-matter were not introduced into the first application until after the patent on the subsequent application had been granted.

The first of these grounds of error does not properly state the ruling in the former decision, but the motion having been allowed this objection may now be waived.

In the cases in which this point has been the subject of adjudication by the Commissioner it has been held that protection for an invention shown, but not claimed, in an existing patent is to be obtained by a reissue, and not by a separate patent, when the invention is so related to the main invention already patented as to be capable of joinder in the same patent, notwithstanding the fact that the application upon which the patent was allowed was the one last filed. Cottrell, C. D., 1876, p. 65; Loring v. Hall, 15 O. G., 471; Stempel, 16 O. G., 316; Bonwill, MS. Decisions of Com., vol. 19, p. 36. In the last-cited case, upon which the Examiner bases his rejection of this application, the rule laid down in the former decisions, although reiterated, was not, in view of the circumstances of that case, there followed.

I can find in the decisions of the courts no warrant for a practice which would require an inventor, in order to secure protection, to claim in a single patent or in a reissue of the same all the inventions which he may have there described. Undoubtedly the law is well settled that an inventor cannot have two subsisting valid patents at the same time for the same invention. This is clearly deducible from the language and policy of the statute, and has been repeatedly so decided by the courts. Odiorne v. Amesburg Nail Factory, 1 Robb, 300; Sickles v. Falls Co., 4 Blatchford, 508; Hayden v. Suffolk Co., 3 Wall., 315; Jones v. Sewall, 3 Cliff., 578; McMillin v. Reese et al., 17 O. G., 1222.

A distinction is to be made, however, between those subjects which are indicated in the specification and specifically pointed out in the claims of a patent as the invention for which protection is sought and such as are merely there described. The former and not the latter constitute the invention patented. In the above-cited case of McMillin v. Rees et al. it was held in this connection as established by the prior adjudicated cases "that of two patents for the same invention the one last granted is void, although it may have been first applied for;" but that "whether two patents cover the same invention must be determined by the tenor and scope of their claims, not by the description in the specification." It is by force of this distinction between what is actually

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