However, with the cessation of war and the return of industry to its pre-war status, the banner year of 1919 far surpassed any other year in the history of the Patent Office. Starting with January of last year and continuing quite regularly through the entire twelve months, over seventy thousand (70,000) applications were filed for patent. Instead of a reaction taking place, the first three months of 1920 show an even more promising and prosperous business future in that over twenty thousand (20,000) were filed, the high water mark of 7800 in March being reached.

Any number of predictions might be made as to the future along this line. The greatest factor that stands out at this time which will effect the number of applications to be filed is the labor question. The strenuous efforts of efficiency experts to increase production, the urgent necessity for machines to offset the shortage and expense of unskilled labor, and the desire to decrease the cost of production of the manufacturer by the use of new methods and new machinery, all point to the conclusion that the patent activity for the coming year is most encouraging.

ASSISTANT EXAMINERS WANTED.

A number of vacancies exist in the grade of fourth assistant examiner in the Patent Office which it is desired to fill with persons having a good education and training along scientific lines, especially in the subjects, mathematics, French or German, chemistry, physics, mechanical drawing and engineering.

A Civil Service examination for the position is announced for June 9-11.

The salary is $1500 plus a bonus of $240 per year to permanent appointees; promotion to higher grades follow as the assistant's ability and knowledge of the examining work is demonstrated.

Announcement of the stated entrance examination giving the scope of the same, and application papers therefor may be obtained by addressing the Civil Service Commission, Washington, D. C.

ELISHA FOOTE

BY W. J. WESSELER.

The Patent Office and the patent practice as we know it today is that founded more immediately upon the revised laws of 1870. So important were the changes in the law and procedure then introduced that the modern period of Patent Office history may be recognized as beginning at that time.

Elisha Foote, the eleventh Commissioner of Patents, accordingly may be regarded as being the last Commissioner of the old régime. His term of office covered the period from July 25, 1868, to April 25, 1869, the interval between his term and that of his predecessor, Commissioner Theaker, being supplied by A. M. Stout, chief clerk of the Patent Office under the last-named Commissioner, who held the office of Acting Commissioner from January 20, 1868, to July 24, 1868.

Like his immediate predecessor in office Commissioner Foote served an apprenticeship on the Board of Examiners-in-Chief. He was appointed to that office from Saratoga Springs, Saratoga County, New York, on August 1, 1865. The press of that day welcomed him into that position as a gentleman of the highest ability and character. His legal standing was particularly commented on and mention was made of his having been counsel in the famous Spike-Making Machine case of The Troy Iron and Nail Factory v. Corning.

At the time of his appointment to the Board of Examiners-in-Chief, Mr. Foote was exactly fifty-six years of age, he having been born at Lee, Massachusetts, on August 1, 1809. His academic education was obtained at the Albany Institute, and following this he read law in the office of Judge Daniel Cady in Johnstown, New York, meanwhile supporting himself by teaching and surveying. After being admitted to the bar he settled in western New York and served as District Attorney and later as Judge of the Court of Common Pleas of Seneca County.

On August 12, 1841, he was married to Miss Eunice Newton. It is of particular interest to residents of Washington that their daughter, Miss Mary N. Foote, became the wife of the distinguished Senator from Missouri, John

B. Henderson, on June 25, 1868, at a brilliant wedding attended by the President and his cabinet, and has long been most prominently identified with the life of the capital. Their only other child, Miss Augusta Foote, became the wife of Mr. Francis Arnold, an influential and wealthy New York business man.

Upon his leaving the bench Judge Foote engaged in the active practice of law. His interest in patent law was not only that of a lawyer but that of an inventor and litigant as well. One of his patents, that upon an automatic draft regulator for stoves, was of considerable commercial value and was the subject of a number of suits at law and in equity, which under the caption of Foote v. Silsby, were carried to the Supreme Court of the United States. Upon different points these were passed upon by that tribunal in three separate decisions, often cited as precedent, particularly with respect to publications and disclaimers. In all of these cases before the Supreme Court, Judge Foote appeared upon his own behalf..

The patent which formed the basis for these suits was numbered 2636 and was granted to Elisha Foote, Jr., May 26, 1842. The claims were as follows:

"What I claim as my invention, and desire to secure by letters patent, is the application of the expansive and contracting power of a metallic rod by different degrees of heat to open and close a damper which governs the admission of air into a stove or other structure in which it may be used, by which a more perfect control over the heat is obtained than can be by a damper in the flue.

"I also claim as my invention the mode above described of setting the heat of a stove at any requisite degree by which different degrees of expansion are required to open and close the damper.

"I also claim the combination above described by which the regulation of the heat of a stove or other structure in which it may be used is effected, and I also claim as my invention the mode above described of connecting the action of the metallic rods with the damper so that the same may be disconnected when the damper shall have closed and the heat shall continue to rise."

By a disclaimer entered March 9, 1847, the patentee limited the application of his invention to

"regulating the heat of a stove in which such rod shall be acted upon directly by the heat of the stove or the fire which it contains."

The suit upon this patent was originally brought in the Circuit Court of the United States for the Northern District of New York (1 Blatch., 268) before Judges Nelson and Conkling on October 9, 1848. Samuel Stevens appeared for the plaintiff and William H. Seward and Samuel Blatchford for the defendant. The cause was referred to a master whose report was a voluminous record. The court after considering exceptions stated that

"agreeably to an earnest request of the counsel that the cause should not be again sent down to the Master, but that the court, upon the evidence before it, should ascertain the amount of profits to which the complainant was entitled, entered upon the inquiry, and, after a laborious and minute examination of a record of some six hundred closely printea octavo pages of proofs, found an aggregate of profits to the amount of $17,989.40, and an aggregate of interest averaged of $5,663.82, making a total of $23,644.22."

When the case was carried to the Supreme Court of the United States (14 How., 219; Dec. 1852) upon writ of error Judge Foote appeared in proper person for the defendant in error and William H. Seward for the plaintiffs in error.

Among other points the admissibility of the disclaimer was considered by the court, the lower court having refused to permit the instrument to be read as a disclaimer because it did not state the extent of the petitioner's interest in the patent. At a subsequent stage of the trial the defendant had offered to read to the jury a copy of this instrument, indorsed on the original letters patent, not as a disclaimer under the act of Congress (5 Stat. at Large, 193, Sec. 7) but as a confession by the plaintiff that he was not the original and first inventor of a part of the thing patented. The plaintiff had thereupon objected, because the endorsement on the letters patent was not in his handwriting, nor signed by him, and the defendant had already caused a duly certified copy of the same instrument to be rejected. The lower court had sustained the objection.

The decision of the Supreme Court was that the statement that the plaintiff himself is the patentee was a sufficient statement of the extent of his interest.

Other points decided in this case are set forth in the following paragraphs of the syllabus.

"Where the court below properly rejected certain evidence, held that it was no cause for reversing the judgment that an erroneous reason was given for rejecting it.

"Courts of the United States have no power to order a peremptory nonsuit against the will of the plaintiff.

"Where notice of special matter under the general issue Act 1836, Sec. 15, was given, of matter described in a publication of upwards of 1300 pages, it was held insufficient for failure to specify the page or title where found.

"The notice having failed to allege where the same was used, notice of the publication to prove publisher's prior knowledge is not sufficient under the statute.

"Where a claim did not point out nor designate the particular elements which composed the combination, but declared that the combination was made up of so much of the described machinery as effected a particular result, held that the claim was a proper one, and that it was a question of fact to be left to the jury which of the described parts were essential to produce the result."

The next case before the Supreme Court (20 Ilow. 290, Dec. 1857) was a second appeal taken for abundant caution because of the doubt whether appeal would have to be filed within ten days from the final decision of the court, or, the filing of a special decree, to serve as a supersedeas. The first appeal was held to be regular, and it was stated the period of appeal could be based on either date.

The holding in the third case before the Supreme Court is sufficiently shown in the following excerpts from the syllabus (20 How., 378):

"Under Act 1837, Sec. 9, notwithstanding that patentee claims too much, the patent is good for what is truly his, and he is entitled to maintain a suit at law for its infringement.

"Where the alleged anticipating device had been produced after suit had been commenced, and its relevancy had been questioned from thence to the present time, and disclaimer thereto was not yet entered, held there was no unreasonable delay in entering it."

Another famous case Judge Foote participated in was that of Troy Iron & Nail Factory v. Corning. This cause is one which was in no way connected with the leading case upon mechanical process patents entitled Corning v. Burden, (15 How., 252 Dec., 1853) although Henry Burden was the inventor of the "Machine for Rolling Puddler's Balls" in that case and the "Spike-Making Machine" in