MORRIS, J.: This is an appeal from an order of the Supreme Court of the District of Columbia awarding a writ of mandamus to require the Commissioner of Patents to reinstate a certain interference proceeding pending in the Patent Office which he had dissolved, and to proceed to determine the question of priority involved in that proceeding. It appears from the record that on June 21, 1887, Letters Patent No. 365,240, bad been issued to one Lemuel Coburn for trolley-tracks, the principal characteristic feature of which in the present connection would seem to have been a semicircular runway for the trolley-tracks. Subsequently, on December 18, 1894, Letters Patent No. 531,151, were issued to William H. Brodie, the relator in the present case, for a modification of the Coburn device, consisting, substantially, in the substitution of a flat bottom and flaring sides, giving a semipolygonal cross-section, for the semicircular runway of the previous Coburn patent. On August 19, 1895, Coburn filed an application in the Patent Office for a patent for the same substantially identical device or mechanism for which Letters Patent had been issued to the relator. An interference was then declared according to the law and the rules of the Office between the applicant Coburn and the patentee Brodie and an adjudication had of the question of the priority of invention. The Examiner of Interferences decided this question in favor of Brodie, and his decision upon appeal was affirmed by the Board of Examiners-in-Chief. Upon appeal from the Board to the Commissioner of Patents the latter adjudged that there was no patentable subject-matter in the issue and dissolved the interference. The Commissioner's decision was rendered on December 8, 1896, and seems to have been acquiesced in by the applicant Coburn. The patentee Brodie, however, the other party of the interference, assuming that the Commissioner at that stage of the case was without legal authority to pass upon the patentability of the subject-matter of issue, and that his jurisdiction was limited exclusively to the determination of the question of the priority of invention, applied to the Supreme Court of the District of Columbia by petition for a writ of mandamus to require the Commissioner to reinstate the interference proceeding and to decide the question of priority of invention. In response to the rule served upon him to show cause the Commissioner moved to quash the petition or rule on the ground that he had authority under the law to dissolve an interference for the reason for which this interference was dissolved. Treating this motion as a demurrer to the petition, and there being, as it would seem, no controverted question of fact in the case, the Supreme Court of the District adjudged that the relator was entitled to the writ and ordered it to issue as prayed, and from this adjudica tion and order the Commissioner has appealed. Without entering into the merits of the controversy, we are unable to see wherein the relator is entitled to the writ of mandamus. Indeed, it is very clear to us that he is not entitled to it under the showing made in his petition. The function of the writ of mandamus in the well settled. It lies simply for the enforcement of the performance of some act or duty required by law to be performed, in the performance of which the applicant for the writ is interested, or by the non-performance of which he is aggrieved or injured, and when there is no other specific legal remedy. (3 Blackst. Com., 110; 4 Bac. Abr., 495; Legg v. Mayor of Annapolis, 42 Md., 203; Knox County v. Aspinwall, 24 How., 376; United States v. Boutwell, 17 Wall., 604; Brownsville Taxing District v. Loague, 129 U. S., 493; ex parte Pennsylvania Company, 137 U. S., 451.) But we fail to see wherein, in the present case, the relator is interested in contemplation of law, or wherein he has been deprived of any legal right, or wherein the respondent has failed in the performance of any legal duty due to him. He had a patent. He has that patent not legally impaired. Attack was made upon that patent by the adverse claim of another party. The attack took the shape of interference proceedings in the Patent Office, in accordance with the forms and provisions of law. Those interference proceedings have been dissolved aud the attack is at an end. The relator remains in full possession of all his legal rights to the same extent as before he was summoned to defend those rights. We find it impossible to see wherein he has been aggrieved or injured in any legal sense. It is very true that he was put to trouble and expense in defending himself in the interference proceedings, and this may have been a hardship; but that is a very general incident of legal proceedings, and it is not apparent that it constitutes a ground for the issue of the writ of mandamus. The substantial grievance of the relator is that he was injured, not legally, but commercially, by the reasons assigned by the Commissioner for the dissolution of the interference proceedings, which were that the claim in issue was not patentable; but, even if it be assumed that the relator's patent was discredited in the community and injured commercially by the reasons so assigned, we still find it impossible to see wherein the respondent has failed in the performance of any legal duty to the relator for which the latter is entitled to have recourse to the writ of mandamus. The specific legal injury to the relator, if any there was at all, was the allegation of certain specific reasons for the respondent's decision. It is not apparent to us that the writ of mandamus should be used to counteract the effect of those reasons, or how the writ could be used to procure that result. Nor is it apparent to us how, in a legal sense, it could benefit the relator to have the action of which he seeks the performance. If a reinstatement of the interference were ordered, the result would be necessarily either that the Commissioner would hold that he was not the original inventor of the device in controversy, and that this court would likewise so hold, or else that judgment of priority might finally be awarded in his favor; but certainly the first alternative would not benefit him, and the second would not place him in any better position legally than that in which he is now. His patent would simply be sustained against the attack upon it. By the action already taken by the Commissioner it has been so sustained. He has suffered no legal injury whatever. Coburn, the unsuccessful applicant, might have some more substantial ground of complaint and more substantial reason to apply for the writ of mandamus, for if the Commissioner was wrong in his conclusions he may possibly be without any remedy whatever; but the relator has his patent unimpaired. The discrediting of it is only by inference, and even if such discrediting has been through error or mistake or without any good cause the writ of mandamus is not an appropriate means for the remedy of the mischief. We think that this is too clear to need further argument or elaboration. Holding, as we do, that the relator in this case is not entitled to the remedy which he seeks, we do not deem it proper to enter into the merits of the controversy; but we do deem it proper to say that if there is ambiguity in the rules of the Patent Office or if those rules do not provide sufficiently or explicitly for such contingencies as have been manifested in this case the Commissioner, by the power vested in him to make rules for the government of his Office, has the remedy in his own hands and should not fail to exercise it. From what we have said it follows that we must regard the order appealed from in this case as error and that it should be vacated. The cause, therefore, will be remanded to the Supreme Court of the District of Columbia, with directions to vacate its order of March 11, 1897, wherein it directed the issue of the peremptory writ of mandamus against the respondent, to quash the said writ if the same has been issued, and to dismiss the relator's petition, with costs, the relator to pay the costs of this appeal. [U. S. Circuit Court-Eastern District of Pennsylvania.] HANIFEN v. E. H. GODSHALK COMPANY et al. Decided December 15, 1896. 79 O. G., 510. 1. BYWATER-Knitted FABRIC-VALID-INFRINGED. Letters Patent No. 374,888, granted December 13, 1887, to Levi Bywater, for an improvement in knitted fabrics, examined and Held valid and infringed. 2. FOREIGN PUBLIC USE DOES NOT INVALIDATE. There is no inconsistency between the law providing that a foreign public use shall not in itself invalidate a patent and the law of evidence under which it is competent to prove such foreign use and sale in order to fix the date of an invention. 3. PATENTABLE DIFFERENCE-ARTICLE Of Manufacture. Though the only difference in the methods of producing a knitted fabric consists in the use of a single different yarn, the two fabrics, being articles of manufacture, may be patentably distinct. 4. PUBLIC USE OR SALE-EVIDENCE. Importation of goods by a firm shown to have been accustomed to exhibit goods of that character promptly, though admissible as evidence, is insufficient to establish public use or sale within the United States. Mr. W. P. Preble, Jr., and Mr. Jos. C. Fraley for the complainant. Messrs. Strawbridge & Taylor for the defendants. DALLAS, J.: The bill in this case prays the usual relief for the alleged infringement by the defendants of Patent No. 374,888, dated December 13, 1887, issued to Levi Bywater, assignor to, the complainant, for an improvement in knitted fabrics. The claim sued upon is as follows: 2. A knitted fabric composed of face and back yarns of different materials, the face yarn being looped at regular intervals and on alternate stitches of adjacent rows of the back yarn, and being matted and curly and having a smooth back, whereby the said fabric has the appearance of looped or Astrakhan cloth, as described. The only defenses which need be discussed are anticipation and prior use. The application was filed on December 22, 1883; but the plaintiff claims that the date of actual invention has been carried back to November, 1880. The defendants, on the other hand, insist, as matter of law, that inasmuch as the date set up is of invention made in England it would not, even if established, be material, and also, as matter of fact, that the invention of the patent has not been shown to have been made at any place before the time at which the application for the patent was filed. There is no statute which warrants the suggested distinction respecting inventions made abroad and those made in the United States. Section 4886 of the Revised Statutes enacts that any person who has invented or discovered any new and useful art, known * before his invention or discovery thereof, a patent therefor. * # * . may not obtain The right to a patent is thus made to depend, as to the point under discussion, wholly upon the time of an invention as related to the then existing knowledge, etc., and nothing whatever is said with respect to the place of invention. The learned counsel of the defendants have argued that it would be incongruous to permit a public use and sale abroad more than two years before application to save a patent by establishing date of invention when such use and sale, if it had occurred in this country, would have operated to defeat the patent. A sufficient answer to this argument would be that the supposed incongrnity is one which the law-making power has seen fit to create; but a more satisfactory one is that no dilemma whatever is really presented. There is no inconsistency between the substantive law which provides that a foreign public use shall not in itself invalidate a patent, though a similar use and sale here would do so, and the law of evidence under which such foreign use and sale may be shown to fix date of invention. The same evidence which for one purpose would be inadmissible may for another be competent. An offer to prove public use and sale in a foreign country more than two years before the filing of the application would, if made to invalidate a patent, be manifestly irrelevant, for the reason that it could not have that effect; but a like offer, if made to show date of invention, would quite as manifestly be relevant, because it might at least tend to establish it. If there is anything in this state of the law which is extraordinary, I fail to perceive it. Several decisions of the Patent Office, extending from 1872 to 1888, have been examined. They show a consistent view of the law to have been there adopted and established, from which I certainly would not dissent without much hesitation and very full consideration; but those decisions do not relate to the precise question which is now before the court and will not be affected by the conclusion which I have reached, respectively. They were all enunciated in interference proceedings, and the principle upon which they all rest is well stated in that one of them which is first cited below, thus: The distinction recognized by the law between an invention made in a foreign country and one made in the United States is this: The single fact that the invention was previously made in the United States, whether by a citizen or a foreigner, is a bar to the grant of a patent to any subsequent inventor, whether such subsequent inventor is a citizen or a foreigner and whether he made the invention in the United States or in a foreign country; but the single fact that the invention was previously made in a foreign country, whether by a citizen of the United States or a foreigner, is no bar to the grant of the patent to a subsequent inventor, whether such subsequent inventor is a citizen or a foreigner, and whether he made the invention in a foreign country or in the United States. In other words, what has been held is that the single fact of previous invention in the United States is, but that mere previous invention in a foreign country-i. e., without patent or printed publication-is not, a bar to the grant of a patent; but it has not been held that where an uncontested application is founded upon invention abroad the grant of a patent is invalid if a sufficiently remote date of invention cannot be established without acceptance of the time when the invention had been made in a foreign country, and it seems to me that while the actual rulings of the Patent Office conform to the law they could not without conflicting with it be made applicable to the present subject. They are supported by the terms of section 4923; but the inference now sought to be deduced from them is quite as plainly inhibited by section 4886. (Thomas v. Reese, C. D., 1880, 12; 17 O. G., 195; Hovey v. Hupland, 2 O. G., 493; Chambers v. Duncan, C. D., 1876, 223; 10 O. G., 787; Lauder v. Crowell, C. D., 1879, 177; 16 O, G., 405; Rumpff v. Kohler, C. D., 1883, |