filling-opening toward but stopping short of the opposite wall of the chamber, the cage being open laterally and at its inner end, an inwardly-opening valve within the cage, and a coiled spring extending through the inner open end of the cage and engaging said opposite wall of the chamber and the valve for holding the latter normally in closed position.

3. A self-oiling wheel having an oil-chamber formed with an opening, a valvecage extending into the chamber and having a tubular end portion fitting the chamber-opening, the cage being open at its inner end and having its sides slotted from said end toward the tubular end, the interior of the cage tapering toward said tubular end, a valve, and a spring within the cage for holding the valve normally seated and closing said tubular cage end.

4. A self-oiling car-wheel having a chambered hub with an oil-inlet through one wall, a valve-seat consisting of a pronged guiding-seat cast in said wall adjacent to said inlet, a valve, and spring bearing against said valve and seating against the opposite side of the cavity.

The invention in issue relates to improvements in self-oiling wheels for mine-cars in which the inlet to an oil-chamber contained within the wheel is normally closed by a spring-pressed valve. The subjectmatter in issue involves only the specific construction of the valvecage and the arrangement of the spring which holds the valve in its seat. In the devices disclosed by both parties the valve-cage has slitted or prong-like walls extending part way across the chamber and a coiled-spring seated upon the wall of the chamber opposite to the oil-inlet for supporting the valve within the cage.

The testimony clearly shows, and it is not disputed, that Sensenich conceived the invention in May, 1903, and reduced the same to practice by manufacturing and selling wheels embodying the invention in issue in June or July, 1903.

Phillips alleges in his preliminary statement that he conceived the invention in issue and disclosed it to others in the year 1893

that on or about the first day of February, 1895, he first made a model showing said invention; that he first embodied his invention in a full-sized car-wheel which was completed on or about the first day of January, 1905—

and that said car-wheel was successfully operated on the 24th day of January, 1905.

Phillips has offered in evidence a valve-cage, Phillips's "Exhibit 1," which he says he made prior to the year 1895, (Qs. 9-10,) and J. M. Phillips, a brother of the appellant, testifies that he first saw this device early in 1895. It is contended by Phillips that this device constitutes a reduction to practice of the invention, as stated in count 1 of the issue. Phillips admittedly had no conception of the specific construction set forth in counts 2, 3, and 4 until November, 1904, which is subsequent of Sensenich's established date of reduction to practice.

It is well settled that a party to an interference is bound by the allegations of his preliminary statement. (Lowrie v. Taylor and

Taylor, C. D., 1906, 713; 123 O. G., 1665; Fowler v. Boyce, C. D., 1906, 659; 122 O. G., 1726; Hammond v. Basch, C. D., 1905, 615; 115 O. G., 804; Cross v. Phillips, C. D., 1899, 342; 87 O. G., 1399.) If, therefore, it could be conceded that Phillips's Exhibit 1 embodied the invention set forth in count 1, it is proof only of conception of that invention in 1895, and he is entitled to no earlier date of reduction to practice than that alleged in his preliminary statement-January, 1905 which is subsequent to Sensenich's filing date. There is no showing of diligence coupling this alleged conception with a subsequent reduction to practice, and Phillips cannot therefore in any event prevail as to priority of invention.

The lower tribunals have held that Phillips's Exhibit 1 does not embody the invention in issue. The cage of this exhibit comprises a cylindrical barrel having four elliptical openings through which the oil may pass to the oil-chamber of the wheel. The form of valvecage specified in count 1 is limited to one "having slitted or pronglike sides." Phillips contends that the terms "slitted" and "pronglike" are alternative and that the former is broad enough to―

include a cage having closed slits as distinguished from any limited definition sought to be placed on the term "slitted" used in count 1 to indicate that the openings are necessarily extended through the end of the cage.

It is a well-settled practice of the Office not to permit an applicant to make alternative claims. Where, however, an applicant employs two terms to designate a particular element, both of which terms describe the element correctly, the claim has been held to be unobjectionable, since the applicant's alternativeness is of language rather than of structure. (Ex parte Holder, C. D., 1903, 442; 107 O. G., 833.) The terms "slitted" or "prong-like" as read in the light of the disclosures of the interfering applications define the same thing and refer to openings in the walls of the cage which extend through the end of the cage, and neither term is therefore applicable to the construction of Exhibit 1. In view of these facts it is held that Exhibit 1 does not constitute evidence of conception of the invention in issue. No other testimony is presented to show that Phillips was in possession of the invention stated in any of the counts of the issue prior to Sensenich's date of reduction to practice. Phillips cannot therefore prevail, even if the testimony concerning Exhibit 1 should be accepted.

It is urged in behalf of Phillips that the original claims of Sensenich's application were generic and covered a structure not limited to the specific features in controversy, that the specific invention in issue was not covered by the original oath, and that in the absence of a supplemental oath the claims in issue were not admissible at the time they were presented and are not now patentable to Sen

senich. This contention is without force. The subject-matter in issue was clearly disclosed in Sensenich's original application. The question whether or not a supplemental oath should be required has been uniformly held by this Office to be an ex parte matter upon which the proper determination of priority is not dependent. (Auerbach and Gubing v. Wiswell, C. D., 1904, 7; 108 O. G., 289; Silverman v. Hendrickson, C. D., 1902, 123; 99 O. G., 445; Kane v. Brill and Adams, C. D., 1898, 146; 84 O. G., 1142; Rennyson v. Merritt, C. D., 1892, 54; 58 O. G., 1415.).

Phillips also urged at the hearing that the claims in issue are not patentable in view of certain references. The record shows that these references were considered by the Primary Examiner upon a motion for dissolution brought by Phillips upon this ground.

The Examiners-in-Chief in their decision upon the question of priority denied Phillips' request to make a recommendation that the claims in issue are not patentable. I do not find in the arguments advanced by Phillips any reason which would warrant the exercise of the supervisory authority of the Commissioner in the further consideration of this question.

The decision of the Examiner-in-Chief is affirmed.

MATTICE V. LANGWORTHY.

PATENT INTERFERENCE.

Decided December 20, 1907.

132 O. G., 678.

1. INTERFERENCE-MOTIONS UNDER RULE 109-PRACTICE.

Where a motion to amend under Rule 109 by the addition of two claims was transmitted, the Primary Examiner properly refused to consider two other claims presented for the first time at the hearing of the motion.

2. SAME-SAME-DELAY IN BRINGING.

A motion to amend under Rule 109 brought after the thirty days allowed by the rules and accompanied by no excuse for the delay is entitled to no consideration and should not be transmitted.

ON PETITION.

MANGLE.

Messrs. Ward & Cameron and Messrs. Meyers, Cushman & Rea for Mattice.

Messrs. Arthur C. Fraser & Usina for Langworthy.

MOORE, Commissioner:

This case is before me on a petition by Langworthy that the Primary Examiner be directed to enter and consider certain claims which were presented in connection with his brief at the hearing of a

motion to amend under Rule 109 and also upon an appeal by Langworthy from the decision of the Examiner of Interferences refusing to transmit a second motion to amend under Rule 109.

The record shows that the preliminary statements were approved July 6, 1907; that on August 7 Langworthy presented a motion to transmit a motion to amend his application by the insertion of two claims, numbered 6 and 7. On August 14 the motion was transmitted to the Primary Examiner. At the hearing upon this motion, which was had September 26, Langworthy presented two additional claims, numbered 8 and 9, which the Examiner refused to consider. Langworthy contends that these claims should be entered and considered in order that he may present before the Office the broadest claims which may be had to cover the invention common to the interfering applications.

It appears from the brief filed in connection with claims 8 and 9 that the reason for the presentation of these claims was that

If the Examiner is of the opinion that claims 6 and 7 do not distinguish the invention with sufficient clearness he is asked to admit claims 8 and 9. If the Examiner, however, agrees with us that claims 6 and 7 abundantly avoid the prior art he is asked to admit all of the four claims.

Present Rule 109 was promulgated in view of the decisions of the Court of Appeals of the District of Columbia in Blackford v. Wilder (C. D., 1907, 491; 127 O. G., 1255) and Horine v. Wende, (C. D., 1907, 615; 129 O. G., 2858,) in which the court refused to consider a second interference for the purpose of permitting applicants to present claims covering all the patentable subject-matter common to the interfering applications. It is not intended by this practice to permit a party to present claims and if they are not acceptable to amend them, and thus enter upon a regular prosecution of his case before the Examiner, nor is it intended to permit an applicant to present his proposed claims in a piecemeal manner.

The thirty days allowed by Rule 109 for applicants to make motions is ordinarily ample time for applicants to present claims which satisfactorily cover the interfering subject-matter, and claims presented after the expiration of this time without excuse for the delay are entitled to no consideration. The decision of the Examiner refusing to consider these claims was right, and the petition is denied. Langworthy's motion to transmit his second motion to amend was filed November 27, 1907, and was denied by the Examiner of Interferences upon the ground that no sufficient excuse for the delay was presented. I agree with the Examiner of Interferences that no sufficient reasons have been given to excuse the delay in presenting this motion of over five months from the date upon which the preliminary statements were approved.

The decision of the Examiner of Interferences is affirmed.

EX PARTE E. WERTHEIMER & CIE.

APPLICATION FOR REGISTRATION OF TRADE-MARK.

Decided January 10, 1908.

132 O. G., 679.

TRADE-MARKS-APPOINTMENT OF REPRESENTATIVE IN UNITED STATES.

The appointment of a representative in the United States required by section 3 of the Trade-Mark Act of 1905 must be made by the applicant for registration. Authority to appoint such representative may not be delegated to an attorney.

ON PETITION.

TRADE-MARK FOR PERFUMERY, COMPLEXION POWDER AND TINTS.

Mr. Henry P. Blair for the applicant.

MOORE, Commissioner:

This is a petition from the action of the Examiner of Trade-Marks requiring that an appointment of a representative, as required by section 3 of the Trade-Mark Act of 1905, be made of record in this case. It appears that the papers as originally filed included a paper purporting to be an appointment of a representative; but the paper was in blank, the name of the representative not having been filled in. On October 4, 1907, an amendment was presented directing that the name of William S. Hodges, 902 F street northwest, Washington, D. C., be inserted in the blank space in this paper. The Examiner refused to enter the amendment on the ground that section 3 required that the representative be appointed by the applicant and not by the attorney.

This refusal is believed to have been proper. Section 3 of the Trade-Mark Act requires that the applicant designate the representative. The formal power of attorney gives the attorney no right to designate such a representative. Nor can the appointment in blank which was filed with the papers be considered as delegating the right to select a representative for the applicant to the attorney. The petition is denied.

BROWN V. GAMMETER.

PATENT INTERFERENCE.

Decided January 18, 1908.

132 O. G., 679.

INTERFERENCE-APPEAL ON Priority-Supervisory AUTHORITY OF COMMISSIONER. A petition to dismiss an appeal from a decision of the Examiner of Interferences on priority rendered on the record will not be considered by the Commissioner in the exercise of his supervisory authority since petitioner has adequate remedies provided by the rules.