These decisions were cited in deciding another case of the same kind in ex parte Ilealey, (C. D., 1898, 157; 84 O. G., 1281.)

The petitioner contends also that the fact that the devices may belong in different classes under the Office scheme of classification does not justify the requirement for division. This broad contention is substantially correct, for it is probable that cases might arise where devices properly belonging in different classes might be so intimately connected in structure, purpose, and operation that they should be allowed to be claimed in one application. In other words, the question of Office classification is not the sole and absolute test, but is merely one of the tests which has a bearing upon the question of division.

Aside from the question of classification, it was said by the present Commissioner in ex parte Wilkerson, (C. D., 1899, 71; 87 O. G., 513:)

* Where devices are independent of each other and do not mutually contribute to produce a single result and the action of one does not in any manner modify or affect the action of the other they should not be permitted to be covered by one application.

This decision is applicable to the present case. The several devices are independent of each other, and the action of one does not modify in any manner the action of the others. They could each separately be used on other specific forms of grain-planting machines not containing the other particular sets of mechanism now separately claimed in this case. Those sets of mechanism have been made independent subjects of invention and manufacture and under the settled practice of the Office should be presented in separate applications.

The requirement for division was proper, and therefore the petition is denied.

POTTER v. ОCHS.

Decided March 16, 1901.

(95 O. G., 1049.)

1. NOTICE OF THE TAKING OF TESTIMONY-NAMES AND ADDRESSES OF WITNESSES. A notice of the taking of testimony of certain-named witnesses and "perhaps others" does not warrant taking the testimony of other witnesses than those specifically mentioned without reasonable notice to the other side of the names and addresses of such other witnesses.

A mere notice on the record one day that a certain witness will be examined the next day is not a reasonable notice, particularly in a case where the attorney for the other side is not present, but is represented by an associate who has instructions merely as to the witnesses mentioned in the original notice.

3. STRIKING OUT TESTIMONY-NOTICE.

A deposition taken without proper notice to the other side will be stricken out. APPEAL on motion.

BALLAST DEVICE FOR ELECTRIC-LAMP CIRCUITS.

Application of Henry N. Potter filed December 29, 1899, No. 741,975. Application of Karl Ochs filed September 16, 1899,

No. 730,665.

Mr. Charles A. Terry for Potter.

Messrs. Briesen & Knauth for Ochs.

CHAMBERLIN, Assistant Commissioner:

This is an appeal by Ochs from the decision of the Examiner of Interferences denying his motion to strike out the deposition of the witness Marshall W. Hanks taken on behalf of Potter in the aboveentitled interference.

It appears from the showing that the attorneys for Ochs were served with notice of the taking of the testimony of witnesses Potter and Wurts "and perhaps others" at Pittsburg, Pa., on January 22, 1901, and that they employed an attorney at Pittsburg as their associate to represent them at the examination. It is stated that this associate was instructed as to the examination of Potter and Wurts, but was directed not to cross-examine any other witnesses

but to object to their depositions going in and to decline to cross-examine on the ground that the name of the witness had not been given in the notice of taking testimony.

On January 23, during the examination of the witness Potter, notice was given on the record that Marshall W. Hanks would be called as a witness at the next session or upon the completion of Potter's examination. On the next day, January 24, Hanks was called and examined, the attorney for Ochs refusing to cross-examine him and entering upon the record an objection to his testimony on the ground of a lack of proper notice. It is upon this objection that the motion to strike out is based.

The original notice of the taking of testimony at Pittsburg did not warrant calling Hanks as a witness, since his name and address did not appear in the notice as required in Rule 154 (1). The attorneys for Ochs were therefore warranted in assuming that no witnesses save the two mentioned in the notice would be examined without giving them reasonable notice. They made no provision for the examination of any other witnesses, but, relying upon the notice, employed an associate and instructed him specifically as to the cross-examination of those two witnesses only. A mere notice on the record one day that a certain witness will be examined the next day is not, in my opinion, reasonable notice, particularly in a case like this, where the attorneys for the other side are not present, but are in a distant city. Such a notice is not a compliance with Rule 154. The practice in interference cases in so far as the question of notice is concerned should conform to the

practice of the courts, since the same reasons apply to make reasonable notice necessary.

The testimony of the witness Hanks having been taken without proper notice, his deposition will be stricken out.

The decision of the Examiner of Interferences is reversed.

EX PARTE DWYER.

Decided February 20, 1901.

1. DIVISION-Measuring-STICK.

(95 O. G., 1247.)

Held that division was properly required between claims to a mechanism for measuring a boot and shoe last and claims to a slide-rule, since the two devices are independent in function and operation and are classified in this Office in different classes and in different divisions.

2. SAME SAME.

The mere fact that the slide-rule in this case is adapte·l by reason of the information conveyed thereby for use in the same general art as the shoemaker's measure does not make the two constitute the same or dependent inventions. ON PETITION.

MEASURING-STICK.

Application of Edward F. Dwyer filed March 25, 1898, No. 675,106. Messrs. Macleod, Calver & Randall for the applicant.

CHAMBERLIN, Assistant Commissioner:

This is a petition from the action of the Primary Examiner requiring division in the above-entitled case.

The invention is said to be a "measuring-stick for measuring lasts for boots or shoes," and consists of a straight stick or base-piece provided with graduations and with two uprights, one fixed and the other slidable on the base. It is also provided with other features making it easy to take the actual measurements of a last. In grooves in the under side of the base-piece is placed a slidable strip forming a sliderule so graduated that the standard dimensions of lasts can be easily ascertained therefrom. The Examiner holds that the mechanism for taking the actual measurements of a last constitutes an independent invention from the slide-rule and has therefore required division between them.

This action by the Examiner was clearly correct. The two devices are entirely independent in function and operation and are not only capable of independent use and from their nature cannot be used together, but must be used separately. The only purpose of placing the slide-rule on the back of the measuring instrument is for conven

ience, and the function and operation of the two are the same as if they were made separately. It might be convenient to place a slide-rule upon various articles used in other arts, but merely so placing it would obviously not make the invention of the particular slide-rule the same as or dependent upon the invention of the particular article upon which it is placed. Slide-rules have been made an independent subject of manufacture and sale and are separately classified in this Office, being placed in Division XXIII under the subclass of "Slide-rules," whereas devices for taking the actual measurements of lasts are placed in Division XXVI under the subclass of "Shoemakers' measures."

The mere fact that the slide-rule in this case is adapted by reason of the information conveyed thereby for use in the same general art as the shoemaker's measure does not make the two constitute the same or dependent inventions. It might equally as well be used on other forms of measuring instruments than the one shown or used separately.

The Examiner's requirement for division was proper, and therefore the petition is denied.

1. DIVISION-PRINTING-PRESS.

EX PARTE SCOTT.

Decided February 23, 1901.

(95 O. G., 1247.)

Held that division was properly required between claims to inking apparatus of a printing-press and claims to a bed-movement and cylinder-operating mechanism.

2. SAME SAME.

The fact that the bed and ink rollers are driven in unison by connected mechanism does not constitute them indivisible inventions, inasmuch as inking mechanisms have acquired a distinct status in the art from other parts of a printing-press and are separately classified in this Office.

3. DIVISIONAL APPLICATIONS.

There are the same reasons for holding that a divisional case takes the benefit of the original date in so far as the bar of a previous foreign patent under section 4887 of the Revised Statutes is concerned as there are for holding that it takes that date in so far as the bar of public use under section 4886 of the Revised Statutes is concerned.

ON PETITION.

PRINTING-PRESS.

Application of Walter Scott filed June 15, 1898, No. 683,519.

Mr. Richard W. Barkley for the applicant.

CHAMBERLIN, Assistant Commissioner:

This is a petition from the action of the Primary Examiner requiring division in the above-entitled eise between claims to the inking

apparatus of a printing-press and claims to the bed-movement and cylinder-operating mechanism.

As stated by the Examiner, inking mechanisms have acquired a distinct status in the art from other parts of a printing-press and are separately classified in this Office. The petitioner, while not denying that inking mechanism usually constitutes an independent invention from the other parts of a printing-press, argues that the particular inking mechanism disclosed by him is not properly divisible from the particular press shown. In his device both the bed and ink rollers are driven in unison with each other by connected mechanism; but this does not, in my opinion, make them constitute an indivisible invention. The inking mechanism could be used on other printing-presses and the printing-press could be used with other inking mechanism.

It appears that the petitioner obtained a British patent upon this invention in 1898, and his principal argument against the requirement for division is based upon the contention that it is questionable whether by reason of that patent he has the right to now make any of the claims here presented in a new application in view of section 4887 of the Revised Statutes. This contention is not well founded, however, for the new application would be a division of the present case, and it is well settled that a divisional application takes the benefit of the date of the original application. (Ex parte Vidal, C. D., 1898, 122; 84 O. G., 808.) The petitioner calls attention to the fact that the circumstances and questions to be determined are not exactly the same here as in ex parte Vidal or in the court cases where it was held that the divisional case takes the benefit of the original filing date. This is, strictly speaking, true; but the circumstances were so analogous that the rulings there necessarily apply to this case. There are the same reasons for holding that a divisional case takes the benefit of the original date in so far as the bar of a previous foreign patent under section 4887 of the Revised Statutes is concerned as there are for holding that it takes that date in so far as the bar of public use is concerned under section 4886 of the Revised Statutes.

Where the claims in a case were properly finally rejected and the applicant thereafter sought to amend and as a reason for not amending earlier alleged that prior to final rejection he did not appreciate the value and importance of certain features of the invention, Held that the showing does not warrant reopening the