to this court. By the terms of this act the latter court simply became the successor in jurisdiction of the former and there is no language in the act which in any wise changed the character of such jurisdiction. There was nothing in the amendatory act of April 11, 1930, which is here pertinent.

The jurisdiction conferred upon the Court of Appeals of the District of Columbia in appeals from the Patent Office was embraced in section 9 of the act creating that court, approved February 9, 1893, 27 Stats. 434-436, chapter 74. The section reads:

SEC. 9. The determination of appeals from the decision of the Commissioner of Patents, now vested in the General Term of the Supreme Court of the District of Columbia, in pursuance of the provisions of section seven hundred and eighty of the Revised Statutes of the United States, relating to the District of Columbia, shall hereafter be and the same is hereby vested in the Court of Appeals created by this act; and in addition, any party aggrieved by a decision of the Commissioner of Patents in any interference case may appeal therefrom to said Court of Appeals.

The foregoing section superceded the old provision of section 4911, Revised Statutes, which authorized appeals, except in interference cases, from the decision of the Commissioner of Patents to the Supreme Court of the District of Columbia by a party "dissatisfied with" the Commissioner's decision. This was by the act of July 8, 1870. It seems that until the act of 1893, creating the Court of Appeals of the District of Columbia, there was no tribunal to which parties in interference cases might carry a direct appeal from the Commissioner's decision, and in the act of 1893 the jurisdiction of the said Court of Appeals was limited to two classes of cases, to wit: (1) Ex parte cases brought by applicants for patents when the claims had been twice rejected.

(2) Interference cases in which the appealing party was "aggrieved by " a decision of the Commissioner.

Prior to the said act creating said court such proceedings as were had by the courts relative to interferences were proceedings in equity. The Court of Appeals of the District of Columbia had occasion quite early in its existence to construe section 9, above quoted, and determine the question of its jurisdiction thereunder, in the case of Westinghouse v. Duncan, reported in 2 App. D. C. 131, 66 O. G.

1009.

From the syllabus of that case, we quote:

1. An appeal does not lie to this court from a mere interlocutory or preliminary order or ruling of the Commissioner of Patents in an interference case, such as a ruling that there is or is not an interference, or an order refusing to investigate an alleged interference; but only from the final decision of the Commissioner in such a case determining the question of the priority of invention;

2. A decision of the Commissioner of Patents from which an appeal will lie to this court, can only be made after the Primary Examiner, and, on appeal from him, the Board of Examiners-in-Chief, have considered the case and made findings therein.

In Podlesak v. McInnerney, 26 App. D. C. 399, 120 O. G. 2127, the said Court of Appeals held that it would take jurisdiction to determine the question of the right of a party to make a claim, "as an ancillary question to be considered in according priority of invention," because such right "goes to the very foundation of an

interference, for, if a party has not such right, the interference falls."

The said court consistently followed its holding in Westinghouse v. Duncan, supra, throughout the entire period of its jurisdiction over appeals from the Patent Office in interference cases, and again and again reiterated the doctrine that actions upon questions arising under motions to dissolve (except upon that of the right to make the claims which is fundamental) are interlocutory proceedings, when unaccompanied by an adjudication of priority rendered in the manner required by the statutes. It also consistently and uniformly held that the court had jurisdiction, in such cases, only of appeals from the decisions by the statutory tribunals of the Patent Office adjudging priority. A review of the many cases is not deemed necessary here. Among them are Allen v. United States ex rel. Lowry, 26 App. D. C. 8, 116 O. G. 2253; In re Fullagar, 32 App. D. C. 222, 138 O. G. 259; Cosper v. Gold, 34 App. D. C. 194, 151 O. G. 194; Carlin v. Goldberg, 45 App. D. C. 540, 236 O. G. 1222; Parker v. Craft et al., 49 App. D. C. 88, 265 O. G. 309; Cowles v. Rody, 49 App. D. C. 135, 270 O. G. 191.

The last three cases arose over the question of whether the appellate court had jurisdiction in appeals in interference cases where the tribunal of the Patent Office, from which the appeal to the court was taken, had held the claims nonpatentable without any award of priority. In each instance the court held that the finding of nonpatentability was an interlocutory matter and declined to take jurisdiction.

The case of Allen v. United States, supra, is worthy of particular note, first, because of the comprehensive review of the patent statutes and Patent Office practice there given by Mr. Justice Duell of the Court of Appeals of the District of Columbia, and, second, because the case found its way to the Supreme Court of the United States and the principle of the issue here involved was there adjudicated. Lowry v. Allen, 203 U. S. 476, 125 O. G. 365. The concluding portion of the opinion of the Supreme Court is:

The statute is explicit. question of priority of invention. Section 4904 provides that in case of conflict It limits the declaration of interferences to the of an application for a patent with a pending application or with an unexpired patent (as in the case at bar), the Commissioner shall give notice thereof, "and shall direct the Primary Examiner to proceed to determine the question of priority of invention." And it is provided that the Commissioner shall issue a patent to the party adjudged the prior inventor, unless the adverse party appeals from the decision of the Primary Examiner or Examiners-in-chief, as the case may be. The history of the sections and the rules are gone into at length by the Court of Appeals in its opinion. We need not repeat the discussion. It answers the detailed reasoning of plaintiffs in error. with the views expressed, that the statutes provide only for appeals upon the question of priority of invention. Appeals on other questions are left to the We concur regulation of the Patent Office under the grant of power contained in section 483. It would seem that the doctrine of stare decisis applies in the instant case unless the Congress by subsequent legislation has changed the law.

In the briefs for both parties it is suggested that amendments to section 482 Revised Statutes, by the act of March 2, 1927, when construed with sections 4904 Revised Statutes, 4909 Revised Statutes,

and 4911 Revised Statutes confer the jurisdiction it is here sought to have us take.

It is pointed out that in amending the said section 482 the word "review" was substituted for the word "revise," so that the Board is now clothed with authority "to review and determine upon the validity of the adverse decision * *" whereas the Examinersin-Chief, before the amendatory act, had the duty "to revise and determine (Italics ours.)

**

*

We are unable to see wherein the substitution of "review" for "revise" in the section defining the duties of the Board of Appeals affects our jurisdiction, which is the same in all respects as was that of the Court of Appeals of the District of Columbia, defined in section 9, supra, of the act creating that court, and now expressed in section 4811 Revised Statutes, supra.

It is suggested further that section 4911 Revised Statutes now provides that any party to an interference who "is dissatisfied with the decision * * * * may appeal * *" whereas it formerly read 66 * * * any party aggrieved by a decision appeal." (Italics ours.)

* *

may

Here again we fail to see wherein the change in phraseology affects the matter of our jurisdiction. It is not the manner of expressing the state of mind of an appellant relative to a decision which fixes jurisdiction, but the nature of the decision itself and, as of course, the source from which the decision comes.

The phrase" is dissatisfied with " relating to an ex parte appeal received construction by the Court of Appeals of the District of Columbia in Moore v. United States, ex rel. Chott, 40 App. D. C. 591, 597, 192 O. G. 520, the court saying:

66

The right of appeal granted by sec. 4911, Rev. Stat. U. S. Comp. Stat. 1901, p. 3391, is very broad, and embraces every applicant for patent, except a party to an interference," who "is dissatisfied with the decision of the Commissioner." We have held this to include any official action of the Commissioner which was decisive of an applicant's right to a patent, or which, in effect, operated as a rejection of the claims of the application. In the case of In re Mattullath, 38 App. D. C. 497, the court, speaking through its chief justice, said: "The right to appeal from a final decision of the Commissioner of Patents is determinable by its substance and effect, rather than its form. Moore v. Heany, 34 App. D. C. 31–39; In re Seldon, 36 App. D. C. 428-431.

The action of the Commissioner of Patents, complained of in the foregoing Moore case, was, and has been stated, taken in an ex parte proceeding, and was a holding that an applicant was not entitled to a patent, although the Board of Examiners-in-Chief (now the Board of Appeals) had held otherwise. By reason of it being a final decision by the Commissioner of non-patentability, the court took jurisdiction under the old section 4911 Revised Statutes. The words mean the same, it seems to use, in an interference proceeding, as they do in one ex parte, and the decision, which the party "is dissatisfied with," in order to be appealable to this court, must be a final decision with an award of priority.

We find nothing in the history of the legislation, and no authority has been brought to our attention, indicating that, as used in the statutes under consideration, there is any distinction between the

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phrases "aggrieved by" and "dissatisfied with " which affects the question of jurisdiction.

Had Congress had it in mind to change the jurisdiction in a matter so important and far-reaching as this, we feel that it would have done so in language so clear as to leave no question relative to its meaning, and would not have attempted to do so merely by changing "revise to "review" and "aggrieved by " to "dissatisfied with."

The brief for Bridges suggests that in view of certain amendments to section 482 Revised Statutes by the act of March 2, 1927 (particularly that respecting the provision of former law whereby the Examinersin-Chief were required to perform such duties as the Commissioner might assign them), the Board of Appeals, as therein created, now has jurisdiction only of appeals, therein provided for, and no longer may take jurisdiction of appeals arising simply under the rules and practice of the Patent Office and not authorized by statute, and says: Therefore, applying the doctrine of the Sundback case, the jurisdiction of the Board of Appeals under the present statute depends upon what interpretation be given to the words "adverse decisions of Examiners"; and in this respect it is coextensive with that of the Court of Customs and Patent Appeals in appeals from the Patent Office. Accordingly, if the Board of Appeals renders a decision in a matter outside of its statutory jurisdiction, and "if any applicant is dissatisfied with the decision of the Board of Appeals," it would seem to be the duty of this court to take jurisdiction and determine whether or not the Board of Appeals had statutory authority to decide the matter.

It does not seem to us that the decision as to our own jurisdiction in this case requires a determination of or an expression upon, that issue. Whether the Board of Appeals had jurisdiction in the instant case under the theory upon which we are deciding the general issue, is not here material, because it made no adjudication of the question of priority. Had it made such an adjudication we might then have been confronted with, and have found it necessary to determine, the question of whether the proceedings back of it, and its own proceeding, were in accordance with the statute.

[1] Following the long line of authorities cited, and finding no enactments which seem to alter the statutes therein construed, or to render permissible any change in those constructions, we adhere to the doctrine that the only question of which we have jurisdiction in interference cases is that of priority, and that the only appeals that we may entertain in such cases are appeals from decisions of the Board of Appeals of the Patent Office, making a final award thereof. [2] We further hold that determination of the patentability or non-patentability in an interference case is an interlocutory proceeding and we have no jurisdiction of an appeal from a decision upon it, no adjudication of priority having been made by the tribunal from which the appeal is taken.

We have not found it necessary to a decision of the issue here involved to review the rules and practice of the Patent Office, nor to discuss the respective functions of "Examiners," "Law Examiners," "Primary Examiner" and "Examiners of Interferences."

The appeal is dismissed for lack of jurisdiction, there having been no award of priority by the Board of Appeals.

Dismissed.

[U. S. Court of Customs and Patent Appeals]

IN RE LA MONTAGNE

No. 2,647. Decided March 31, 1931

410 O. G. 548; 47 F. (2d) 975

1. PATENTABILITY-SELECTION OF OLD FEATURES.

"It is well established that if an applicant has taken one feature from one patented device and another feature from another patented device and combined them, and has produced no results other than were produced by the original devices in their individual operation, then he has invented nothing."

2. SAME AGGREGATION.

Claims for a stocking Held unpatentable as including nothing more than aggregation of elements old in the art.

APPEAL from the Patent Office. Affirmed.

Messrs. Morrison, Kennedy & Campbell and Mr. Harold Olsen for La Montagne.

Mr. T. A. Hostetler for the Commissioner of Patents..

LENROOT, J.:

This is an appeal from a decision of the Board of Appeals of the United States Patent Office affirming the decision of the Examiner in rejecting all of the claims of appellant's application, six in number, as defining nothing patentable over the prior art.

Claim 6 is illustrative of the claims in issue and reads as follows:

6. As a new article of manufacture, a stocking knit from the toe to the top and including a toe-portion of plain-knitting; a sole and a heel of plain-knitting interknit with the toe-portion; an instep-section of rib-knitting interknit with and successively to the knitting of the sole and heel; a relatively short section of plain-knitting adjoining the ribbed instep, looped to the toe-portion, and interknit with the ribbed instep; a leg portion of rib-knitting interknit with the ribbed instep and being a continuation of the ribbing in the instep-section and extending to the top of the stocking; and a top-portion inter-knit with the ribbing of the leg-portion and comprising special rib-knitting, the ribbing, thus, terminating at one end of the short-section of plain-knitting looped to the adjoining toe-portion and at the other end with the top-portion of special knitting; the ribbed instep-section having a degree of stretchability substantially greater than that of the short-section of plain-knitting, and the top-portion of special knitting having a degree of stretchability substantially greater than that of the ribbed instep-section; the stocking, in consequence, being characterized by relatively high extensibility at the top, with no substantial strain at the instepsection, and being comfortable to the wearer and more easily slipped onto the foot and leg.

The references are: La Montagne et al., 1,282,880, Oct. 29, 1918; Murphy et al., 1,626,049, Apr. 26, 1927.

It is conceded by appellant that the reference Murphy shows all of the elements of the claims here in issue except the special ribbed top of the same. The reference La Montagne is a patent to appellant for a knitting machine and it is conceded by him that the top portion of the stocking embodied in his present application is fully disclosed in said patent. Appellant, therefore, does not claim that any of the elements of the claims here involved are new. On the contrary, he admits that they are old, but does contend that by combining the ele