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sides of the point of pivotal connection, said frame and said supporting portion lying in the same plane when the tracker-box is in playing position.

10. In a mechanical musical instrument, a keyboard and an action, in combination with a frame lying substantially parallel with the plane of the keyboard, and a tracker box frame pivotally-connected to said frame, the point of pivotal connection being below and in rear of the front edge of the keyboard, said frames being movable relatively to and from a position in the same plane, and means for locking the tracker-box frame to its supporting frame when the box is in operative position.

13. In a mechanical musical instrument, a keyboard and an action, a playing mechanism carried by the instrument, expression-control mechanism and connections therefor, and a pivotally-mounted tracker-box movable between two predetermined positions relative to the playing mechanism, the pivot point being below and in rear of the front of said keyboard, one of said tracker-box positions being in front of the keyboard, the other of said positions being on the opposing side of the pivot point, said box permanently carrying the operating devices for the expression-control connections, said connections being partially supported by said box and movable therewith.

The references cited are: Kuster, 791,701, June 6, 1905; Votey, 824,049, June 19, 1906.

The patent to Votey discloses a mechanical musical instrument of the same type as applicant's device. As in applicant's structure, it has a pivotally-mounted tracker-box adapted to be swung into position in front of the keyboard when the instrument is operated mechanically or to be swung below the keyboard, where it is out of the way, in case it is desired to play the instrument manually. In Votey's construction the pivotal connection of the tracker-box to its supporting frame or brackets is below the front edge of the keyboard, while in applicant's device it is below the keyboard, but back somewhat from its front edge. This difference in the position of the pivotal connection is the principal difference in the construction set forth in the appealed claims over the Votey structure. It is expressed in the concluding portion of claim 5 by the languagethe pivot point being below and in rear of the front of the keyboard.

This location of the pivotal connection, whereby applicant contends that his tracker-box when swung into an operative position is more completely out of the way of the person manually operating the instrument than is possible with the Votey construction, is set forth in all of the appealed claims by the same or an equivalent expression.

The patent to Kuster shows his playing attachment pivoted below and to the rear of the front edge of the keyboard at the same point where applicant pivots his tracker-box. Kuster's patent states that— the casing of the attachment consists of a part 4, carrying the bellows, and the key operating and controlling mechanism, which may be of any well-known and approved form and which does not form a part of my present invention.

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The appealed claims were rejected by the lower tribunals on the disclosure in Votey's patent, taken in connection with that of Kuster, the position taken being that no invention would be involved in locating Votey's pivotal connection back of the front edge of the keyboard in view of the construction shown in the patent to Kuster. I perceive no error in the holding of the lower tribunals. As stated by the Primary Examiner:

The Kuster construction suggests that in the Votey case the pivotal point o may be placed beneath and in the rear of the front of the key bed. To accomplish this the change requisite in the Votey structure would be to have the tracker board support of Votey made curved or angular to so extend under the key bed.

In claim 5 and certain other claims it is attempted to distinguish from the construction disclosed in Kuster's patent by the limitation— a playing mechanism carried by the instrument and normally positioned stationary therein.

This construction, however, is clearly disclosed in the patent to Votey. Claim 8 and some of the other claims do not have this limitation, but use merely the term "tracker-box." These latter claims appear to be met by Kuster alone, since it is not thought that the term "tracker-box" patentably distinguishes from Kuster's swinging box or attachment. Kuster's supporting-brackets K appear to be the equivalent of applicant's supporting-frame 5, at least so far as set forth in the claims.

Claims 10, 19, 20, and 21 include means, or a spring-actuated catch, for securing the tracker-box in operative position. The specification of the Votey patent (p. 2, line 6) states that it is sometimes desirable to provide means for holding the tracker-box against accidental displacement when in position for use. This is an anticipation of applicant's securing means as broadly expressed in these claims. The Examiner has allowed claims covering the specific structure of applicant's securing means.

The limitation in claims 13, 15, 16, and 28 relating to the carrying of the operating devices for the expression-controlling connections upon the tracker-box, as broadly stated in these claims, is not considered patentable over the construction shown in Votey, in which the slide B for operating the expression-controlling lever is mounted on the tracker-box. Claim 3, which specifies the construction of applicant's expression-controlled connection, was allowed by the Examiner.

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

BOTH V. BARR.

Decided February 12, 1914.

200 O. G., 582.

INTEFERENCE-APPLICANT AND PATENTEE-PATENTABILITY.

Where an applicant seeks an interference with a patent, Held that the claims in the application should not be rejected nuless such rejection is based upon a clear anticipation.

APPEAL from Examiners-in-Chief.

SOCKET-SHELL.

Mr. Alan M. Johnson for Both.
Mr. Robert S. Allyn for Barr.

NEWTON, Assistant Commissioner:

This is an appeal by Barr from the decision of the Examiners-inChief affirming the decision of the Primary Examiner refusing to admit his claims 1, 3, and 8 as issues in this interference under the provisions of Rule 109. These claims are as follows:

1. A pull socket comprising a shell body having a slot in its upper end, a double flanged eyelet detachably carried by said shell in said slot forming a chain guide and having its flanges overlapping the edges of the body surrounding the slot and a shell cap on the body holding the eyelet in place.

3. In a pull socket, a metallic shell body having a slot, a chain guide having a groove removably fitting the edges of the metal around the slot and a shell cap fitting the edge of the body and holding the chain guide in place.

8. In electric light pull sockets the combination of a shell provided with a slot, a removable chain guide having means to coöperate with the walls of the slot, a cap to prevent the movement of the chain guide in one direction, and means for securing the cap and shell together.

Both, the other party to the interference, has a patent, No. 1,024,671, which also contains as claims these proposed counts.

After these claims were suggested for interference purposes they were rejected on the patents to Hauss, No. 921,108, May 11, 1909, and on Hubbell, No. 565,541, August 11, 1896, in view of Hauss.

The party Both on September 16, 1911, filed an affidavit under Rule 75 for the purpose of antedating the Hauss patent, but at the same time put on record the following statement:

In answer to the official action of July 17, 1911, applicant traverses the pertinency of the Hauss Patent 921,108, which is for an entirely different device and has no connection with a pull socket, nor is the device used as a chain guide. As the applicant completed the invention in this country prior to the date of filing of the Hauss patent, he herewith presents an affidavit, under Rule 75, so that the application is now in condition for allowance.

It will be noted from this letter that the party Both traversed the pertinency of the Hauss patent as a reference.

Barr could not antedate the Hauss patent; but in his letter of October 27, 1911, he traverses the pertinence of this patent as a reference.

Hauss discloses an electric-light holder, which is in a somewhat different class of devices from the switch-shells of the interfering parties. The slot 1 in the housing of Hauss holds a collar L', of insulating material, through which a wire a passes. Hubbell, however, does disclose a switch-shell having therein an eyelet or collar, through which passes a pull-cord 25, similar to that of the interfering parties. It will be noted, however, that even if we combined this Hubbell switch-shell with the Hauss light-holder, Hauss being in a somewhat different art, we still do not quite meet the terms of the proposed issues, since it cannot be fairly said of Hubbell that his cap on the body holds the eyelet in place, as specified in count 2, because, unlike the caps of the interfering parties, which come down in contact with the eyelets, Hubbell's shell-cap is too far above his eyelet to hold it in place, or, as stated in proposed count 4, "prevent the movement of the chain guide in one direction."

There is some question, therefore, whether or not the proposed issues are met in these patents. As pointed out above, Both has contended, in effect, that they were not. Barr still contends that they are not met, and under these circumstances it is thought that the proposed counts should be added to the interference in view of the holding of the Court of Appeals of the District of Columbia in in re Orcutt (C. D., 1909, 334; 141 O. G., 567; 32 App. D. C., 345,) to the effect that

In view of the inadvertence of the Patent Office in granting a patent to McDonald and McDonald for the claims of the issue, which patent is now beyond the control of the Office, it would probably have been the more equitable practice to have assumed patentability in the interference proceeding for the purpose of determining the question of priority between the two parties thereto.

Also, in ex parte Brinkman, decided by Commissioner Ewing January 8, 1914, (112 MS. Dec., 128,) it is held:

The question has been raised elsewhere as to the propriety of the refusal by this Office to grant a claim to an applicant which is the same as the claim of a patent disclosing interfering subject-matter. Without passing on this broad question, it seems to me clear that after a patent has once been granted it is not good practice to reject an applicant seeking an interference, where the rejection is based upon no clear anticipation, but the piecing together of several patents.

I therefore direct the Examiner to withdraw his rejection of claim 21 and to declare an interference with the Lewis patent.

The decision of the Examiners-in-Chief is therefore reversed.

EX PARTE SHELLABARGER.

Decided December 29, 1913.

200 O. G., 855.

APPLICATION-EXAMINATION-APPLICATION OF REFERENCES.

Where in the first Office action the Examiner cited four references and specifically applied the same to the claim and in the further prosecution of the case only one new reference was cited, which was not relied upon as an anticipation, and the applicant repeatedly amended his claims in view of these references, Held that no further application of the references is necessary.

ON PETITION.

FOLDABLE CHAIR.

Messrs. Chandlee & Chandlee for the applicant.

FRAZIER, First Assistant Commissioner:

This is a petition asking that the Primary Examiner be instructed to apply the references to the claims rejected.

The record shows that in the first official action of October 3, 1908, the Examiner cited four references and specifically applied the same to the claims. In the second action, following the substitution of the single claim for the six claims rejected, the Examiner again specifically applied the references to that claim. In the third official action this claim was again rejected on the references and for the reasons set forth in the previous official letter. This action was repeated in the fourth official letter in respect to two new claims presented, still using the references of record, and the single claim was similarly treated in the fifth official letter, and again in the sixth official letter. In the official letter of July 16, 1912, the Examiner specifically stated that the claim presented is substantially the same in substance as those previously considered, and using the same references, a clear issue having been reached, the rejection was made final. Applicant's action in repeatedly changing the claims to avoid the references cited warrants the conclusion that he had no difficulty in understanding the application of the references. Otherwise it is not easy to reconcile his action in changing the claims in the absence of a clear understanding of those references. The citation of an additional reference in the official letter of June 27, 1911, was unnecessary, since the action was based, not on this additional reference, but upon the references already fully considered and explained in the first official letter. The explanation of the Examiner, however, of the applicability of the references in the first official action was sufficient for all purposes, in my judgment, and the applicant appears to have conducted the further prosecution of the case in the light of that explanation.

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