Rev. Stat., sec.

4905.

Notice.

Waiver.

Reasonable time for travel.

Service of no tice.

TESTIMONY IN INTERFERENCES AND OTHER

CONTESTED CASES.

154. The following rules have been established for taking and transmitting testimony in interferences and other contested cases:

(1) Before the depositions of witnesses are taken by either party due notice shall be given to the opposing party, as hereinafter provided, of the time when and place where the depositions will be taken, of the cause or matter in which they are to be used, and of the names and residences of the witnesses to be examined, and the opposing party shall have full opportunity, either in person or by attorney, to cross-examine the witnesses. If the opposing party shall attend the examination of witnesses not named in the notice, and shall either cross-examine such witnesses or fail to object to their examination, he shall be deemed to have waived his right to object to such examination for want of notice. Neither party shall take testimony in more than one place at the same time, nor so nearly at the same time that reasonable opportunity for travel from one place of examination to the other can not be had.

(2) The notice for taking testimony or for motions must be served (unless otherwise stipulated in an instrument in writing filed in the case) upon the attorney of record, if there be one, or, if there be no attorney of record, upon the adverse party. Reasonable time must be given therein for such adverse party to reach the place of examination. Service of such notice may be made in either of the following ways: (1) By delivering a copy of the notice to the adverse party or his attorney; (2) by leaving a copy at the usual place of business of the adverse party or his attorney with some one in his employment; (3) when such adverse party or his attorney has no usual place of business, by leaving a copy at his residence, with a member of his family over fourteen years of age and of discretion; (4) transmission by registered letter; (5) by express. Whenever it shall be satisfactorily shown to the Commissioner that neither

of the above modes of obtaining or reserving
notice is practicable, the notice may be pub-
lished in the Official Gazette. Such notice shall,
with sworn proof of the fact, time, and mode of
service thereof, be attached to the deposition or
depositions whether the opposing party shall
have cross-examined or not.

Official certificate.

(3) Each witness before testifying shall be duly sworn
according to law by the officer before whom his
deposition shall be taken. The deposition shall
be carefully read over by the witness, or by the
officer to him, and shall then be subscribed by
the witness in the presence of the officer. The
officer shall annex to the deposition his certifi-
cate showing (1) the due administration of the
oath by the officer to the witness before the
commencement of his testimony; (2) the name
of the person by whom the testimony was written
out, and the fact that, if not written by the
officer, it was written in his presence; (3) the
presence or absence of the adverse party; (4)
the place, day, and hour of commencing and
taking the deposition; (5) the reading by, or
to, each witness of his deposition before he signs
the same; and (6) the fact that the officer was
not connected by blood or marriage with either
of the parties, nor interested, directly or indi-
rectly, in the matter in controversy. The officer
shall sign the certificate and affix thereto his
seal of office, if he have such seal. He shall missioner.
then, without delay, securely seal up all the
evidence, notices, and paper exhibits, inscribe
upon the envelope a certificate giving the title
of the case, the name of each witness, and the
date of sealing, address the package, and for-
ward the same to the Commissioner of Patents.
If the weight or bulk of an exhibit shall exclude Exhibits.
it from the envelope, it shall be authenticated
by the officer and transmitted in a separate
package, marked and addressed as above pro-
vided.

Depositions to dressed, and for

be sealed up, ad

warded to Com

(4) If a party shall be unable to take any testimony Motion to ex

tend time fortak

within the time limited, and desires an extension ing testimony. for such purpose, he must file a motion, accom

Rev. Stat., sec. 892.

Caveat as evi

dence.

Official records and special matter offered in evidence.

Depositions to be filled in Patent Office.

Formalities.

Formalities.

panied by a statement under oath setting forth specifically the reason why such testimony has not been taken, and distinctly averring that such motion is made in good faith, and not for the purpose of delay. If either party shall be unable to proc re the testimony of a witness or witnesses within the time limited, and desires an extension for such purpose, he must file a motion, accompanied by a statement under oath setting forth the cause of such inability, the name or names of such witness or witnesses, the facts expected to be proved by such witness or witnesses, the steps which have been taken to procure such testimony, and the dates on which efforts have been made to procure it. (See Rule 153.)

(5) When a party relies upon a caveat to establish the date of his invention, the caveat itself, or a certified copy thereof, must be filed in evidence, with due notice to the opposite party.

(6) Upon notice given to the opposite party before the closing of the testimony, any official record, and any special matter contained in a printed publication, if competent evidence and pertinent to the issue, may be used as evidence at the hearing.

(7) All depositions which are taken must be duly filed in the Patent Office. On refusal to file, the office at its discretion will not further hear or consider the contestant with whom the refusal lies; and the office may, at its discretion, receive and consider a copy of the withheld deposition, attested by such evidence as is procurable. 155. The pages of each deposition must be numbered consecutively, and the name of the witness plainly and conspicuously written at the top of each page. The testimony must be written upon legal cap or foolscap paper, with a wide margin on the left-hand side of the page, and with the writing on one side only of the sheet.

156. The testimony will be taken in answer to interrogatories, with the questions and answers committed to writing in their regular order by the officer, or, in his presence, by some person not interested in the case, either as a

Testimony ta ken stenograph

party thereto or as attorney. But with the written con-
sent of the parties the testimony may be taken steno-ically.
graphically, and the deposition may be written out by
other persons in the presence of the officer.

tent to take tes

Where testimony is taken stenographically, a long-hand Officer compeor typewritten copy shall be read to the witness, or read timony. over by him, as soon as it can be made, and shall be signed by him as provided in paragraph 3 of Rule 154. No officer who is connected by blood or marriage with either of the parties, or interested, directly or indirectly, in the matter in controversy, either as counsel, attorney, agent, or otherwise, is competent to take depositions, unless with the written consent of all the parties.

157. Upon motion duly made and granted (see Rule 153) testimony taken in an interference proceeding may be used in any other or subsequent interference proceeding, so far as relevant and material, subject, however, to the right of any contesting party to recall witnesses whose depositions have been taken, and to take other testimony in rebuttal of the depositions.

158. Upon motion duly made and granted (see Rule 153) testimony may be taken in foreign countries, upon complying with the following requirements:

(1) The motion must designate a place for the exam-
ination of the witnesses at which an officer duly
qualified to take testimony under the laws of
the United States in a foreign country shall re-
side, and it must be accompanied by a statement
under oath that the motion is made in good
faith, and not for purposes of delay or of vex-
ing or harassing any party to the case; it must
also set forth the names of the witnesses, the
particular facts to which it is expected each will
testify, and the grounds on which is based the
belief that each will so testify.

Testimony taference may be

ken in one inter

used in another.

4905.

Rev. Stat., sec. kon in foreign

Testimony ta

countries.

Motion.

(2) It must appear that the testimony desired is mate- Motion.
rial and competent, and that it can not be taken
in this country at all, or can not be taken here
without hardship and injury to the moving
party greatly exceeding that to which the oppo-
site party will be exposed by the taking of such
testimony abroad.

7133-07-4

Interrogato

ries.

Cross-interrog

atories.

Objections..

Papers sent to proper officer.

Stipulations.

Weight of testimony taken in foreign countries.

hearing.

tionstoevidence.

(3) Upon the granting of such motion, a time will be
set within which the moving party shall file in
duplicate the interrogatories to be propounded
to each witness, and serve a copy of the same
upon each adverse party, who may, within a
designated time, file, in duplicate, cross-inter-
rogatories. Objections to any of the interroga-
tories or cross-interrogatories may be filed at
any time before the depositions are taken, and
such objections will be considered and deter-
mined upon the hearing of the case.
(4) As soon as the interrogatories and cross-interroga-
tories are decided to be in proper form, the
Commissioner will cause them to be forwarded
to the proper officer, with the request that, upon
payment of, or satisfactory security for, his
official fees, he notify the witnesses named to
appear before him within a designated time
and make answer thereto under oath; and that
he reduce their answers to writing, and trans-
mit the same, under his official seal and signa-
ture, to the Commissioner of Patents, with the
certificate prescribed in Rule 154 (3).
(5) By stipulation of the parties the requirements of
paragraph 3 as to written interrogatories and
cross-interrogatories may be dispensed with,
and the testimony may be taken before the
proper officer upon oral interrogatories by the
parties or their agents.

(6) Unless false swearing in the giving of such testi-
mony before the officer taking it shall be pun-
ishable as perjury under the laws of the foreign
state where it shall be taken, it will not stand
on the same footing in the Patent Office as testi-
mony duly taken in the United States; but its
weight in each case will be determined by the
tribunal having jurisdiction of such case.

Evidence on 159. Evidence touching the matter at issue will not be considered on the hearing which shall not have been taken and filed in compliance with these rules. But notice will Formal objec- not be taken of merely formal or technical objections which shall not appear to have wrought a substantial injury to the party raising them; and in case of such injury it must be made to appear that, as soon as the party became aware of the ground of objection, he gave notice thereof to the office, and also to the opposite party, informing him at