[Court of Appeals of the District of Columbia.] HIEN v. PUNGS. Decided January 4, 1897. 78 O. G., 484. MOTIONS FOR REHEARING Condemned. Thongh there may be cases in which rehearing may well be had, the endeavor of the court is always to bring to a case in the first instance the best judgment which it possesses in the interests of justice, that the determination, when made, should have the element of stability. It is not just to the court or to parties that argument should be held back by counsel until after decision upon the chance that the judgment may be favorable nevertheless. ON MOTION for reinstatement of appeal. Mr. W. H. Singleton for the appellant. No appearance for the appellee. Mr. W. A. Megrath (law-clerk) for the Commissioner of Patents. MORRIS, J.: The appeal in this case, which was from a decision of the Commis. sioner of Patents in an interference proceeding, was recently dismissed by this court (C. D., 1896, 649; 77 O. G., 1600) on the ground that it had not been taken in due time, more than eighteen months having been allowed to elapse after the Commissioner's decision before the appeal was sued out, notwithstanding that the rule of this court prescribed that appeals should be taken within forty days after decision rendered. It was sought to evade the application of this rule upon the ground that the decision here appealed from had been rendered before the pro mulgation of the rule in question; but we held that, inasmuch as the aggrieved party might have appealed within the forty days after the promulgation of the rules, and had given no explanation of his failure to do so or of his unusual delay, we could not now entertain the appeal. The appellant now files a motion for the reinstatement of the appeal, basing it on the alleged invalidity of the rule of the court which prescribes a limitation of time for appeal, and which he claims to have been made without warrant of law and in violation of the limitation of two years prescribed by section 4894 of the Revised Statutes of the United States for the prosecution of applications for patents in the Patent Office, and leave is requested both to file briefs on the subject and to submit oral argument. We do not deem any argument, either oral or written, to be neces sary, and we might have contented ourselves with the mere denial of the motion for reinstatement of the appeal were it not that this seems to us to be an appropriate occasion to animadvert upon a practice that has been growing in this court and which we cannot sanction. Counsel in this court seem frequently to regard it as their duty to file motions for a rehearing, which the present motion virtually is, just as they file motions for a new trial in a nisi prius court. Counsel should not regard themselves under obligation to file such motions. While there are undoubtedly cases in which, from their great impor tance or the novel or doubtful character of the questions involved, rehearing may well be had and may properly be sought, yet it should be understood that the court always seeks in the first instance to bring the best judgment which it possesses, aided by all the lights which counsel give it in their briefs and arguments, to bear upon the causes submitted to it for its determination. If in such determination it commits error, the mistake is one of judgment, to which all human action is liable; but it is expedient in the interests of justice that the determination when made should have the element of stability. Nor is it just to the court or to parties that argument should be held back until after decision upon the chance that the judgment of the court might be favorable without consideration of the questions raised upon rehearing. There is a time assigned for argument, and all the questions legiti mately proper to be raised should be raised at that time and not subsequently. As we have intimated, we cannot sanction the indiscriminate practice of filing motions or petitions for a rehearing. We do not question the good faith of counsel in the present case, for the question which they raise is a fair and legitimate question, although it should not have been postponed to the present time; but we think the practice which this motion illustrates is not one to be encouraged, and such motions in the future will receive but scant consideration unless it is made very plainly to appear that the questions raised by them could not well have been raised at an earlier stage of the proceedings or that the cause of substantial justice could not be subserved without their consideration. With reference to the motion here interposed, we are of opinion that this court under the statute which created it had ample authority to frame rules to limit the time in which appeals might be taken from the decisions of the Commissioner of Patents, and that the rule limiting the time for taking such appeals to forty days is a valid and appropriate rule, binding alike upon the court and upon parties. We must therefore deny the motion of the appellant for the reinstatement of his appeal. [Court of Appeals of the District of Columbia.] SNYDER v. FISHER, ACTING COMMISSIONER OF PATENTS. Decided January 5, 1897. 78 O. G., 485. 1. SNYDER-TEACHING-CHART-ALLOWABLE. Application of Louise Snyder examined in view of references cited thereto and Held allowable. 2. INVENTION-ORIGINAL THOUGHT-EXTENT OF MENTAL PROCESS. Invention must extend beyond the merely novel and useful and into the domain of original thought, though the extent of the mental process is immaterial. 3. RESULT-REFERENCES-INVENTION. Result considered in connection with references may indicate that degree of thought that rises to the dignity of invention. Mr. J. C. Pennie and Mr. J. A. Goldsborough for the appellant. Mr. W. A. Megrath (law-clerk) for the Commissioner of Patents. BRADLEY, J.: This is an appeal from the decision of the Commissioner of Patents rejecting two of the claims in an application of the appellant for Letters Patent. The invention is denominated a "teaching-chart," for use in schools in the instruction of young children. It is described as consisting of a number of leaves held together at their upper edge by a binder of suit. able construction, which is provided with an appliance for hanging the chart upon a wall or to a proper frame or stand. Some one or more of these leaves are entire and contain printed or written words or reading matter. Others are divided crosswise of the reading-lines, and the printed or written matter is so arranged that when certain sections of the same leaf are brought into sidewise registration with each other or with sections of other leaves the words exposed in reading-line will form a sentence or make sense. The object is stated to be to counteract the tendency of young children to memorize locality and sequence rather than words, and by changing subjects, objects, and verbs in the turning of parts of the slitted leaves, thus substituting a new subject, object, or verb, to compel the pupil to learn words from their individuality rather than from their locality or association. The appellant asked the allowance of the following claims: 1. A chart or book comprising a plurality of slitted sectional leaves bound together at one edge, and containing words or reading matter, the slit or slits of one leaf registering with those of all the other leaves, whereby when one or more sections of one leaf are turned up the reading matter thus exposed on the section or sections of the underlying leaf will be in reading registration with the matter contained on the unturned portion of the leaf first mentioned. 2. A chart or book comprising a plurality of leaves containing reading matter and bound together at their upper ends, each of said leaves being slitted or divided vertically or crosswise of the reading-lines to form sections so that any section of one leaf may be turned independently of the other section of the same leaf to bring the reading matter of one or more of said other sections into reading registration with the reading matter on the leaf-section below said turned or raised section. 3. As an article of manufacture, a chart or book comprising one or more entire or undivided leaves containing words or symbols, and a plurality of slitted or sectional leaves, all of said leaves containing words or reading matter, the slit or slits of one leaf registering with those of all the other slitted leaves, whereby when one or more sections of one slitted leaf are turned up the reading matter thus exposed on the section or sections of the underlying leaf will be in reading registration with the matter contained on the unturned portion of the slitted leaf first mentioned; substantially as described. The third claim was allowed. The others were rejected, as anticipated by patents to Gilmore, dated May 10, 1892, No. 474,732; Robertson, dated October 2, 1883, No. 286,152; British patent No. 17,105 of 1890, Bean, and a Japanese picture-puzzle. The Gilmore patent is for an invention having the same object as that of appellant. The inventor uses a frame containing a number of vertical belts or bands stretched tightly upon rollers, the belts being arranged side by side and each one operated by a turning-knob located at one side of the frame. Upon these belts strips bearing printed words or figures are buttoned. Some of the strips contain the verbs, others the subjects or objects. By turning the knobs the strips are adjusted in reading relation, so that sentences are formed, any words of which can be changed by raising or lowering the belt with the strips bearing the word. Each strip contains a limited number of words. Increasing the variety of subjects, objects, or verbs is accomplished by adding to the number of strips and by the removal and substitution of the one for the other. This invention is involved in much mechanism liable to get out of order. It is complex in manipulation. The Acting Commissioner of Patents says of this reference in his decision: It shows a reading-chart the face of which is slitted crosswise of the reading-lines. This appears to be inaccurate. The reading-chart is composed of a series of adjustable belts, to which are buttoned removable strips containing words. Each strip is distinct, composing an element of the chart only when placed in its position upon an adjustable belt of the machine. The expression quite as aptly could be applied to separate letter or word blocks arranged in juxtaposition to form words or sentences. The appellant has accomplished the object sought by Gilmore in a more simple, complete, cheap, and useful manner. The meaus used are entirely different and the operation is totally dissimilar. Of the other references, the Robertson patent is for two complete books bound in one cover, one containing words and the other tunes for hymn-singing, the purpose being that given words and a given tune may be brought the one above the other for simultaneous use, thus obviating the inconvenience of handling two books. The subject-matter of the British patent is sufficiently indicated by the claims, which read 1. Making children's story and like books with illustrations on side leaves foldable to a center and affixed to a cover. 2. Illustrating both sides of foldable leaves the outer edges of which meet when folded inwardly and so that any two leaves when so folded present a picture of an amusing character. This reference does not appear to be relied upon by the Acting Commissioner. The Japanese puzzle-picture is very similar in character and purpose to the British patent. It consists of four sets of leaves, each set secured at one edge to a stiff back, so that the lines of the secured edges form a square or rectangle and opposite leaves, each of which contains a halfpicture, fold toward each other, meet edge to edge at a central line, and form completed pictures. Its primary object is not apparent, but amusement and entertainment evidently enter into its purpose. The only feature common to this puzzle-picture and to appellant's invention is the binding together at one edge of each set of leaves, a common expedient centuries old. It is conceded that appellant's device is not anticipated in any one of the references; that it is novel and useful; but it is claimed that in view of these references the requisite element of invention is lacking, and that therefore it is not patentable. Just where the line of invention lies in an accomplished result is frequently difficult for the courts to determine. That it must extend beyond the merely novel and useful and into the domain of original thought has been determined. The extent of the mental process, however, is immaterial. The result may come out of long consideration or it may be the revelation of a flash of thought. Appellant's invention, viewed from the standpoint of achievement, appears so simple that it may be difficult to put finger upon the precise point at which the inventive faculty was exercised; yet it appears to us to be clear that the result, considered with the references cited in support of the rejection of the application, indicates that degree of thought that rises to the dignity of invention. The apparent simplicity of a new device often leads an experienced person to think that it would have occurred to any one familiar with the subject; but the decisive answer is that, with dozens and perhaps hundreds of others laboring in the same field, it had never occurred to any one before. (Potts v. Creager, C. D., 1895, 143; 70 O. G., 494; 155 U. S., 608.) The rejected claims should have been allowed, and therefore the decision of the Commissioner of Patents is reversed, and this decision and the proceedings in the case shall be certified to the Commissioner of Patents. [U. S. Circuit Court of Appeals-Sixth Circuit.] STANDARD CARTRIDGE COMPANY et al. v. PETERS CARTRIDGE COMPANY. Decided December 8, 1896. 78 O. G., 621. 1. LIGOWSKY -CARTRIDGE-Loading MACHINE-PRIORITY. The action of the Patent Office and of the Circuit Court in adjudging priority in favor of George Ligowsky in the interference Ligowsky v. Peters v. Hisey, C. D., 1891, 220; 57 O. G., 1593, Cartridge-Loading Machine, Held correct. 15377-17 |