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This contention is believed to be not well founded. None of the applications referred to in the petition is involved in the interference, and therefore the case does not fall within the ruling in those decisions which hold that where a divisional application is involved in an interference the other party to the interference has a right to obtain access to the parent application. Nor does it appear from Pickard's preliminary statement that he is relying on these applications in any such manner as would entitle Ashton and Curtis to see the intermediate application. If by the paragraph referred to in Pickard's preliminary statement he intends to claim that he is entitled to August 30, 1906, as evidence of conception or reduction to practice of the invention involved therein, the only question which could arise would be whether the application which resulted in Patent No. 877,451 was a division of application Serial No. 332,697, filed August 30, 1906, and this question is in no way concerned with whether the application on which Patent No. 877,451 was granted was a division of the intermediate application or not, since if the matter shown in the latter application was disclosed in the earlier Pickard would be entitled to the benefit of that date.

The petition is denied.

EX PARTE LITCHFIELD.

Decided December 2, 1908.

137 O. G., 1942.

REOPENING APPLICATION FOR FURTHER PROSECUTION AFTER FINAL REJECTION. Where the claims in an application are finally rejected after a full prosecution by the applicant and a clear issue has been reached between the applicant and the Primary Examiner, the case will not be reopened for further prosecution.

ON PETITION.

WASHBOARD.

Messrs. C. A. Snow & Company for the applicant.

BILLINGS, Assistant Commissioner:

This is a petition that the Examiner be instructed to reopen the above-entitled application and to give an action on the merits of the claim presented by amendment of January 7, 1908.

The record shows that the claims originally presented were rejected and the pertinency of the references pointed out, and that subsequently the application of the references to the claims was repeatedly pointed out in view of the amendments presented. On September 26, 1907, a new claim was presented in place of the claims then pending and was rejected by the Examiner upon two references and the

manner in which these references were to be combined was set forth. On January 7, 1908, a claim covering the same subject-matter, but differing in terms, was presented, whereupon the Examiner made the following action:

The claim is rejected on the references cited in the Office letter of October 19, 1907, and this rejection is made final.

Thereafter the applicant presented an amendment adding a second claim and requesting that the Examiner point out under Rule 65 the reason for rejection of the claim inserted by the amendment dated January 6, 1905. The Examiner thereupon refused to enter the amendment, for the reason that the case was under final rejection, and further pointed out that—

the application of the references to the finally-rejected claim is given in the Office letter of October 19, 1907.

The applicant endeavored to further prosecute the case, but subsequent amendments were not accepted by the Examiner.

The invention in controversy is an exceedingly simple one, and the pertinency of the references to the claims presented and to the invention is obvious, especially in view of the statements contained in the Examiner's letters. There appears to have been a clear and unmistakable issue reached as to the patentability of the invention at the time the Examiner finally rejected the claim, and, for the reasons stated in ex parte Lasance, (C. D., 1907, 374; 131 O. G., 1421,) the action of the Examiner finally rejecting the claim on February 18, 1908, was not premature. In view of this fact there appears to be no reason for reopening the case for the purpose of further amendment.

The petition is denied.

EX PARTE MILLER.

Decided December 10, 1908.

137 O. G., 1943.

DELAY IN COMPLETING APPLICATION-New Oath REQUIRED.

Where a petition, oath, specification, and drawing were filed in the Office on a certain date, but the fee was not paid until over four months later, a new oath was properly required.

ON PETITION.

RAILWAY-MAIL CATCHER AND DELIVERER.

Mr. Frank J. Tuttle for the applicant.

BILLINGS, Assistant Commissioner:

This is a petition from the action of the Primary Examiner requiring an additional oath in this case under the provisions of Rule 46.

on the ground that the application was not filed complete within a reasonable time after the execution of the original oath. (See ex parte Branna, C. D., 1901, 232; 97 O. G., 2533.)

The record shows that the original oath was executed April 28, 1908. The petition, oath, specification, and drawing were filed in the Patent Office on April 30, 1908, two days thereafter. The first fee of fifteen dollars, however, was not paid into the Patent Office until September 17, 1908, and the application was therefore given a complete filing date as of September 17, 1908, in accordance with the practice in such cases.

The only reason for requiring an applicant to file an oath executed on a date near to the date upon which his application was filed complete is to make certain the facts regarding public use and sale, publication of the invention, and prior patenting, which are required to be set forth in the oath. It is very evident that the same deficiency exists with regard to these allegations set up in the oath in the present case, where the oath is sworn to on a certain date and promptly filed in the Patent Office, together with the usual papers constituting the application, and the fee necessary to complete the filing of the application is withheld from payment for a period of six months or more, as they do in a case such as considered in ex parte Branna, supra, where the oath is sworn to on a certain date and the application retained in the hands of the inventor and filed complete in the Patent Office some months thereafter.

As stated above, in the present case the oath was sworn to on the 28th of April. The petition, oath, specification, and drawing were filed on the 30th of April, and the fee was filed in the Patent Office September 17. The application therefore received a complete filing date of September 17. To accept this application without the filing of a new oath would necessitate reading into the present oath the facts that the applicant on the 28th of April, 1908, took oath that there had been no public use or sale of the invention or publication of the invention or patenting of the invention for more than two years prior to September 17, the date of the filing of the application complete. It is evident from the reading of the oath which was executed the 28th of April that the applicant did not upon that date swear to any such facts. While the facts in the case of ex parte Branna (C. D., 1901, 232; 97 O. G., 2533,) are not exactly the same as the facts in this case, the principles announced in that decision are equally applicable to this case.

The petition is denied.

KENT V. WILSON v. JEFFERY AND JEFFERY.

Decided December 15, 1908.

137 O. G., 1943.

1. PRELIMINARY STATEMENT—AMENDMENT AFTER TESTIMONY.

Where during the taking of testimony notice was given by counsel for W., in connection with an answer of a witness as to the date of disclosure, of an intention to present a motion for leave to amend W.'s preliminary statement, Held that such notice is insufficient to warrant amendment of the statement to change the allegation of making a model to an allegation of reduction to practice at such date.

2. SAME-SAME-DELAY IN BRINGING MOTION.

Where counsel for W. was apprised of the facts which W. expected to prove as early as September 23, 1908, and the testimony in behalf of W. was filed in the Patent Office on October 9, 1908, but the motion to amend the preliminary statement was not filed until October 30, Held that in the absence of sufficient excuse the delay in filing the motion warrants the denial of the motion.

APPEAL ON MOTION.

SPARKING-PLUG.

Messrs. Knight Brothers for Kent.

Mr. Victor J. Evans for Wilson.

Mr. William S. Hodges for Jeffery and Jeffery.

BILLINGS, Assistant Commissioner:

This is an appeal by Wilson from a decision of the Examiner of Interferences denying his motion for leave to file an amended preliminary statement. Wilson in his original statement alleged conception of the invention about the 1st of August, 1905, drawings about the 1st of September, 1905, disclosure about the 15th of January, 1906, making of the model on or about the 1st of October, 1905, and the reduction to practice about the 1st of September, 1906. By the proposed amendment the allegation of the making of a model about the 1st of October, 1905, is changed to a reduction to practice at that time.

Peter H. Wilson, the appellant, testified that on or about the 1st of September, 1905, he made a drawing which he offered in evidence as "Exhibit A." In answer to Question 23, whether he ever showed the sketch to any one about the time he completed it, he said, "I showed it to my wife at that time." Objection was made to the question on the ground that it tended to establish a date of disclosure at variance with the allegation in the preliminary statement. Thereupon counsel for Wilson gave notice on the record that he would as soon as practicable after the conclusion of the testimony-in-chief of

Wilson move the Commissioner of Patents for leave to amend Wilson's preliminary statement. Wilson was therefore asked:

Q. 24. State when you first made a model showing this invention?
A. About October 1st, 1905, I should judge.

At a subsequent point in the examination this "model" was offered in evidence. No hint was then given that the previous notice of intention to amend the statement included an intention to amend the allegation with regard to the "model." The presumption still existed that the motion to amend, if brought at all, would be for the purpose of correcting the alleged date of disclosure. No further notice appears in the record of any intention on the part of Wilson to move for permission to amend the preliminary statement in respect to the date of reduction to practice of the invention. The testimony-in-chief was taken in behalf of Wilson on the 7th of October, 1908, and was filed in the Patent Office on the 9th of October. The motion to amend Wilson's preliminary statement was, however, not filed until the 30th of October, 1908.

The Examiner of Interferences denied Wilson's motion to amend, upon the ground that the failure of Wilson to move promptly to file his amended statement after the discovery of the alleged error in his original preliminary statement had lost him any rights which he might have to the relief sought. The decision of the Examiner of Interferences was clearly right. The notice contained in the record appears in connection with the testimony relative to the disclosure of the invention by means of the drawing, which was objected to by counsel for Jeffery and Jeffery as being inconsistent with Wilson's preliminary statement. The witness was examined throughout in respect to the making of "models," and counsel for Jeffery and Jeffery proceeded to cross-examine Wilson and the other witnesses called in his behalf upon the testimony taken.

As stated by the Examiner of Interferences:

It may well be that had the attorney for Jeffery and Jeffery been apprised of the intention to bring a motion to amend Wilson's preliminary statement carrying his date of reduction to practice back to October 1, 1905, he would have desired to cross-examine the witnesses on behalf of Wilson along different lines.

It must therefore be held that the notice upon the record is insufficient to warrant the amendment of the preliminary statement as desired. Furthermore, as early as the 23d of September, 1906, counsel for Wilson was in possession of knowledge of the facts which Wilson expected to prove and on October 7th was fully advised by Wilson's testimony of the character of the device alleged to be a model. It was incumbent upon him to move promptly to amend his preliminary statement, if such motion was to be brought in good faith. The argument presented in the brief that the Examiner of

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