to answer material questions, does not stand on the same footing as a case where the objection is that the testimony has no proper place in the case. In the latter case if the objection is well founded the testimony will upon motion be stricken out prior to final hearing. (Huber v. Aiken, C. D., 1899, 166; 88 O. G., 1525.) The corrections and additions made by the witness Sherman to his testimony in the absence of counsel for the appellant and long after his deposition was given clearly cannot properly be given any weight or consideration as testimony in the case. They should, therefore, be stricken out. These additions and corrections are found on pages 61 and 62 of the printed record for the Independent Baking Powder Company. The decision of the Examiner of Interferences is affirmed except as to the additions to Sherman's testimony, and as to that matter it is reversed. WALSH V. HALLBAUER. Decided December 13, 1900. (94 O. G., 223.) 1. APPEAL FROM DECISION OF EXAMINERS-IN-CHIEF DECLINING TO DIRECT THE COMMISSIONER'S ATTENTION TO NON-PATENTABILITY of the ISSUE-RULE 126. While Rule 126 provides that the Examiners-in-Chief may, if they deem it advisable, call the attention of the Commissioner to any matter not relating to priority which in their opinion establishes the fact that no interference exists or that there has been irregularity in declaring the same or which amounts to a statutory bar to the grant of a patent to either party for the claim in interference, Held that this is not compulsory upon them, and when they decline to do so no appeal lies. 2. POWER OF COMMISSIONER TO Dispose of INTERFERENCE WITHOUT DECIDING PRIORITY. The Commissioner is clothed with power to dissolve an interference on the ground that the issue is not patentable without deciding the question of priority. This power, however, should be exercised with great care, and the interference should not be dissolved except in a clear case. (Bender v. Hoffmann, C. D., 1898, 262; 85 O. G., 1737, and Anderson and Dyer v. Lowry, C. D., 1899, 230; 89 O. G., 1861, cited.) APPEAL from Examiners-in-Chief. SHEET-METAL VESSEL. Application of Francis A. Walsh filed May 25, 1898, No. 681,670. Application (reissue) of Ernst M. Hallbauer filed February 17, 1899, No. 705,911. Mr. II. G. Underwood for Walsh. Messrs. Dyrenforth & Dyrenforth for Hallbauer. DUELL, Commissioner: This is an appeal by Walsh from the decision of the Examiners-inChief awarding priority to Hallbauer on the following issue: In a vessel, the combination with the top thereof having an opening therein, the wall of said opening being surrounded by a channel or trough, the said wall having an outward-projecting portion adjacent to its upper end, of a cover having a springflange provided with an inward bend or contraction, terminating in a downwardlydepending flange projecting within said channel or trough, the said inwardly-bent portion of said cover-flange being in contract with said outward-projecting portion of the wall of said opening on a single horizontal plane. After this interference was declared and after other preliminary proceedings in the case Walsh on February 26, 1900, made a motion to dissolve under Rule 122, basing the motion on the authority of Bechman v. Wood, (C. D., 1899, 459; 89 O. G., 2462.) This motion was denied, whereupon the case proceeded upon the question of priority of invention. Neither party took testimony, and on May 14, 1900, Hallbauer, the senior party, filed a motion under Rule 119 for an order entering judgment against Walsh unless he should show sufficient cause why such judgment should not be entered. On June 21, 1900, Walsh filed an affidavit urging, among other grounds, the case of Bechman v. Wood, supra, as a reason why judgment should not be rendered against him. On June 22, 1900, however, the Examiner of Interferences rendered judgment against Walsh under the provisions of Rule 119. From that decision appeal was taken by Walsh to the Examiners-in-Chief, and from their decision affirming the decision of the Examiner of Interferences this appeal is taken. The following are stated as the reasons of appeal: 1. The Examiners-in-Chief erred in affirming the decision of the Examiner of Interferences that the showing of cause made by the junior party was insufficient. 2. The Examiners-in-Chief erred in affirming the decision of the Examiner of Interferences, on the alleged ground that "the state of the case as to facts of invention by the parties" was the same at the time the said Examiners-in-Chief considered the appeal, as it was when the case was before the Commissioner on the motion to dissolve the interference." 3. The Examiners-in-Chief erred in affirming the decision of the Examiner of Interferences, on the ground that the decision of the Commissioner on the motion to dissolve the interference, before any testimony had been taken, or any decision on priority rendered, controlled the action of said Examiners-in-Chief, on appeal, after a decision on priority had been rendered, based on Rule 119. 4. The Examiners-in-Chief erred in not finding that the facts and dates in the record disclosed a statutory bar (under the rule of law and practice, and the doctrine laid down by the Court of Appeals in the decision Bechman r. Wood, C. D., 1899, 459; 89 O. G., 2462) to the grant of a patent to either of the parties for the claim in interference. 5. The Examiners-in-Chief erred in not directing the attention of the Commissioner under Rule 126, either before or in their decision on the question of priority, to the above-named matter amounting to a statutory bar to the grant of a patent to either of the parties for the claim in interference. In the appeal particular attention is called to the fourth and fifth counts, and it is requested that before judgment on priority the interference be suspended and the case remanded to the Primary Examiner for his consideration of the matter raised by those two counts or that it be considered by the Commissioner before the case is remanded. The question raised by the fifth reason of appeal in my opinion is not appealable to the Commissioner. Under Rule 126 the Examinersin-Chief may, if they deem it advisable, call the attention of the Commissioner to any matter not relating to priority which in their opinion establishes the fact that no interference exists or that there has been irregularity in declaring the same or which amounts to a statutory bar to the grant of a patent to either party for the claim in interference. This is not, however, compulsory upon them, and when they refuse to do so no appeal lies. The Examiners-in-Chief, in their decision, after referring to the decision of Bechman v. Wood, say: The Court of Appeals of the District of Columbia may find that a party to an interference case before them is the first and original inventor of the issue of that interference case and then may be able to withhold from him a judgment of priority, but the statute and the rules of practice for the Patent Office will not permit any of its officers having jurisdiction of the trial of a finally-declared and existing interference to withhold from the party found to be the prior inventor a judgment of priority of invention in his favor. In an interference proceeding, the question of priority of invention is the only question contested and the only one to be determined, and a tribunal of the Patent Office empowered to hear and determine interference proceedings must determine that question as between parties to the interference and determine it by rendition of judgment of that question in favor of one of the parties. A judgment that neither party is entitled to a judgment of priority of invention is not a determination as to these parties of the question of priority of invention. It is a judgment which refuses to both parties a right which is conferred on them by the statute and the pertinent rule of practice. I must dissent from this view of the Examiners-in-Chief as to the power of the Commissioner of Patents as set forth in this matter quoted from their decision. In making this statement they evidently overlooked my decision in the case of Bender v. Hoffmann (C. D., 1898, 262; 85 O. G., 1737) and in the case of Anderson and Dyer v. Lowry, (C. D., 1899, 230; 89 O. G., 1861,) where I carefully considered the powers and duties of the Commissioner and in which I held that in a proper case the Commissioner may dissolve an interference on the ground that the issue is not patentable without deciding the question of priority. In this connection see also the decision of the Court of Appeals of the District of Columbia in re Locke, decided December 11, 1900. This power of the Commissioner is, however, to be used with great caution in interference cases, and the interference is to dissolved without deciding priority only in a clear case. Ordinarily the question of priority should first be determined. (Anderson and Dyer v. Lowry, supra.) I have carefully considered the question raised by the appeal and am of the opinion that the claim of the issue was made seasonably by Hallbauer and was warranted by and came within the scope of his invention as disclosed in his original application, and under the rules and the law applicable to the case he is entitled to the date of the invention as of the date of this application. This case does not come within the ruling of the Court of Appeals as laid down in Bechman v. Wood, supra, as I understand it, but rather within that of McBerty v. Cook, (C. D., 1900, 248; 90 O. G., 2295.) I do not think it necessary and therefore must decline to more particularly consider the question of the statutory bar, as requested by Walsh. The decision of the Examiners-in-Chief affirming the action of the Examiner of Interferences and awarding priority of invention to Hallbauer under the provisions of Rule 119 was correct, and it is therefore affirmed. EX PARTE TRACY. Decided December 20, 1900. (94 O. G., 431.) 1. POWER OF ATTORNEY, REVOCATION OF BY ASSIGNEE ASSIGNMENT EXECUTED BY TRUSTEE INSTEAD OF BY INVENTOR. Where it appeared that F. as trustee had authority to sign the inventor's name and to sell and convey inventions and T. had received the inventions through him by regular assignments which requested that the patents be issued to the assignor, Held that T. is the legal owner of the inventions and entitled to prosecute the applications and to be represented by an attorney of his own selection. 2. SAME ALLEGED ASSIGNMENT NOT IDENTIFYING APPLICATION OR REQUEST THAT THE PATENT ISSUE TO ASSIGNEE. Where an alleged assignment to M. does not identify any application and does not request that the patent issue to the assignee, Held that if the assignment conveys any interest in the invention, it is merely equitable and not legal, and the Office will not recognize such equitable interest, but must be guided by the record as to the legal title. 3. SAME-NO CONFLICTING ASSIGNMENTS OF LEGAL TITLE. Held that where the Office records do not show conflicting assignments of the legal title the assignee claiming the right under a legal title to prosecute a case will be recognized to the exclusion of a party claiming the right under an alleged equitable title. ON PROTEST. SEWING MACHINE. Application No. 374,287, filed December 11, 1890; No. 380,646, filed February 7, 1891; No. 415,177, filed December 15, 1891; No. 461,459, filed February 8, 1893; No. 474,103, filed May 13, 1893; No. 474,104, filed May 13, 1893; No. 510,914, filed May 11, 1894: No. 535,330, filed January 18, 1895; No. 689,960, filed August 31, 1898. Mr. R. G. Dyrenforth for the applicant. Mr. Joseph J. Marrin for the protestant. DUELL, Commissioner: The question presented for decision in these cases is whether or not the alleged assignee, Jeremiah Evarts Tracy, shall be permitted to prosecute the cases to the exclusion of the inventor and of an alleged assignee of a part interest, Joseph J. Marrin. The cases have been prosecuted by R. G. Dyrenforth under a power of attorney from the inventor; but Jeremiah Evarts Tracy, as assignee of the entire interest, has filed a revocation of that power of attorney and has appointed C. A. Weed as his attorney to prosecute the cases. Joseph J. Marrin, claiming a one-tenth interest in the inventions, has filed papers confirming the appointment by the inventor of R. G. Dyrenforth and protesting against the revocation of his power of attorney. The question for determination is whether or not Jeremiah Evarts Tracy, according to the record, has the legal title to the entire interest in the inventions, for if he has, and the record does not disclose a conflicting claim, he is entitled to prosecute the cases to the exclusion of the inventor and of every one else. (Ex parte Anderson, C. D., 1893, 12; 62 O. G., 149; ex parte McTammany, C. D., 1900, 168; 93 O. G., 751.) There are twelve instruments recorded in this Office which have been referred to in the arguments upon the question presented, but it is unnecessary to here refer to them all. It appears from that record that on December 17, 1895, Harriet Ruth Tracy, the inventor, conveyed to Amos T. French, as trustee for the benefit of creditors, all of her property and effects of every description including all and singular of the patents for inventions and improvements, the object of the trust being that French should take possession of the same and to sell the same with all reasonable dispatch and to convert the same into money. To this end she appointed French— * * * her true and lawful attorney irrevocable with full power and authority to do all acts necessary in the premises * and execute, acknowledge and deliver all neeessary deeds, instruments, and conveyances * to sign the name of the party of the first part (Harriet Ruth Tracy) to any instrument in writing whenever it shall be necessary to carry into effect the object, design and purpose of this trust. This instrument alone might be considered sufficient authority for French as attorney for the inventor to convey the legal title to the inventions covered by applications then pending, although it does not refer to those applications specifically. In a subsequent instrument, however, dated February 28, 1896, she refers to the applications now under consideration by date and number and makes it clear that she intended the authority given in the previous instrument to apply to |