Both the Board and the Examiner of Interferences concur in their findings as to these facts and in awarding priority to Miller, and their conclusions are obviously correct, he being not only first to conceive, but to reduce the invention to practice and apply it to use.

Testimony has been introduced on the part of Miles tending to show that the invention had gone into public use more than two years prior to the filing of Miller's application. The attorney for Miller objected to the introduction of such testimony, on the ground that it did not relate to the interference proceeding and was not legal testimony.

It is not pretended that the testimony on this point is in any mauner connected with or ancillary to the matter at issue in the interference. The alleged public use was by parties not in interest in this case of an invention neither party knew of.

The only matter at issue in an interference is priority of invention, to which the question of originality, as between the parties, is sometimes germane. It is an elementary rule of evidence that the testimony in a cause must be confined to the point at issue. It necessarily follows that in an interference proceeding all testimony not bearing directly or indirectly upon the issue-i. e., priority of invention-is subject to the rule, and may be stricken out. Sometimes it happens, however, that in the course of the proceedings public use is shown by one of the parties of his invention, and thus the evidence may be brought into the case and considered, but where it has reference to the acts or proceedings of third parties in regard to inventions not those of the parties to the controversy, it must be rejected as irrelevant and immaterial. Such was the rule as laid down in Smith vs. Perry (9 OFFICIAL GAZETTE, 688), and nothing has been developed in the presentment of this case that leads me to change the practice then established. Seasonable objection was taken to this testimony by the attorney for Miller, and he relied upon and gave notice of the decision above referred to when the testimony was taken. I find, therefore, that this testimony, referring to public use of an invention similar to that in issue by third parties, does not have reference to the matters inquired of in the interference proceeding, and must be excluded from the case.

The decision of the Board is affirmed.

WRIGHT AND BRYANT vs. SAMUEL W. REESE.

Motion.

O. G., vol. xi,
p. 329.

་

IN THE MATTER OF THE INTERFERENCE BETWEEN THE APPLICATION OF J. T. WRIGHT AND O. G. BRYANT, FILED MARCH 22, 1876, AND THE PATENT GRANTED TO SAMUEL W. REESE, FEBRUARY 1, 1876, FOR IMPROVEMENT IN STENCIL-PLATES."-Decided January 30, 1877.

In computing the thirty days in which an appeal may be taken from the decision of the Board, the date of the notice of the decision is to be included.

Parties should take notice of delays in the arrival of mails when the same are of

public notoriety, and not by negligence in acting subject themselves to such ordinary risks.

When the final fee has been paid by the successful party in an interference, and nothing remains to be done but to issue the patent it will not be withheld for the purpose of declaring another interference with an application filed subsequent to the rendition of the judgment.

The same principle is applicable to a motion to reopen an interference after the limit of appeal has expired and the case gone to issue, and everything been done except the delivery of the patent.

DOOLITTLE, Acting Commissioner:

A motion is made to reopen the above-named interference on the ground that the appeal taken from the decision of the Board of Examiners-in-Chief to the Commissioner, although the notice of the same was received two days after it was due at the Office, was, in fact, mailed from the place of sending, Chicago, within a time sufficient to have reached here before the limit of appeal had expired, and that the appeal-fee having been deposited with the subtreasurer in Chicago, the appeal should have been regarded as regularly taken.

The notice of the Office fixing the limit of appeal was dated December 11, 1876, and the expiration of the thirty days is regarded as having occurred on the 10th of January. Notice of appeal was not received until the 12th. No proof is adduced showing the cause of delay in forwarding the notice of appeal. From the time generally taken for letters to reach here from Chicago, it was possible for the notice of appeal to reach the Office in due time. But one mail a day, however, was at that time brought from the General Post-Office, and it is a well-known fact that mails were being delayed during that part of the mouth by snow-storms.

Parties should take notice of such matters, and not by negligence in acting subject themselves to such ordinary risks.

Another serious matter has since intervened, and that is the allowing of a patent to the applicant in whose favor the award of priority was given. The patent went to issue January 16, 1877, was numbered, signed, sealed, printed, and published, everything in fact having been done but the mere manual delivery of the same. To withhold the delivery of this patent now, in view of the above circumstances, which upon their face show a lack of diligence, to say the least, on the part of the patentee, in pushing his remedy by appeal, would be, I think, an extraordinary stretch of authority.

Under Office Rule 59 an application, after the final fee has been paid and nothing remains to be done but issue the patent, will not be withheld for the purpose of declaring an interference with another application filed subsequent to the rendition of the judgment, and I think the reopening of interferences should proceed upon the same principle. The applicants in such cases acquire rights which should not be withheld from them by reason of any laches on the part of opposing parties. The motion is denied.

J. J. GRAY.

Interlocutory Appeal.

O. G., vol. xi, p. 329.

APPEAL FROM THE DECISION OF THE PRIMARY EXAMINER IN THE MATTER OF THE APPLICATION OF J. J. GRAY, FILED OCTOBER 9, 1876, FOR "IMPROVEMENT IN SCROLL-SAWS."-Decided January 31, 1877. Claims which recite definitely the article invented, and contain in addition matter descriptive of the functions of certain parts, are not objectionable.

A claim to a scroll-saw having a U-shaped frame, A, the arms of which are adapted to be lengthened or shortened in such manner as to increase or diminish the distance between the bend or cross-bar 1 of the frame and the saw-blade B as set forth, is not a claim to a function, but to a saw, the arms of which are adjustable to suit different material.

CARROLL D. WRIGHT & BROWN, attorneys.

DOOLITTLE, Acting Commissioner:

The claim made by the applicant is as follows:

A scroll-saw, having a U-shaped frame, A, the arms of which are adapted to be lengthened or shortened in such manner as to increase or diminish the distance between the bend or cross-bar 1 of the frame and the saw-blade B, as set forth.

The Examiner considers this a functional claim, and rejects it accordingly. It is difficult to perceive wherein the claim is objectionable. It recites definitely the article invented, and qualifies its structure by describing the function performed. Applicant has adopted, perhaps, the best method of claiming broadly a scroll-saw having the U-shaped frame, the arms of which may be adjusted by various contrivances. This, if new, applicant is entitled to secure by patent. The claim comes clearly within the decision in the case of Jeremiah Kieth (9 OFFICAL GAZETTE, 744). The matter regarded as establishing a claim for a function is simply descriptive of the functions which the feature mentioned performs, and the manner of its construction.

The improvement desired to be here secured is evidently a saw, the arms of which are adjustable to suit different work. The precise devices employed, while embodying and including this invention, are not, perhaps, the exact measure of the improvement effected. The decision of the Examiner is overruled.

OTTO PRESSPRICH.

Interlocutory Appeal; Design.

O. G., vol. xi, p. 195.

APPEAL FROM THE DECISION OF THE PRIMARY EXAMINER IN THE MATTER OF THE APPLICATION OF OTTO PRESSPRICH, FILED NOVEMBER, 10, 1876, FOR DESIGN FOR "AN INSTRUMENT FOR REGULATING THE PRESSURE OF GAS."-Decided February 1, 1877.

The rejection of an application upon the ground that it does not constitute the proper subject-matter for a design patent, has reference to the merits, and is appealable to the Board.

DOOLITTLE, Acting Commissioner :

The Examiner denies that the matter included in this application is the proper subject for a design patent, and, upon his suggestion, applicant takes this appeal.

The practice in this matter was changed in the case of D. L. Proudfit (10 OFFICIAL GAZETTE, 585), where it was determined that the rejection of an application on the ground that it does not present the proper subject-matter for a design patent, has reference to the merits of the case, and is subject to revision by the Board of Examiners in Chief upon appeal.

The case does not, therefore, come under the provisions of Rule 44 with reference to preliminary or intermediate questions, and the appeal is accordingly dismissed.

JULIUS GERSON.

Appeal.

O. G., vol. xi, p. 244.

APPEAL FROM THE DECISION OF THE BOARD OF EXAMINERS-IN-CHIEF IN THE MATTER OF THE APPLICATION OF JULIUS GERSON, FILED FEBRUARY 3, 1876, FOR "IMPROVEMENT IN BLOTTING-PADS."-Decided February 5, 1877.

The useful result claimed for the invention was economy of material; but, it not appearing that such was the natural result of its use, nor that any improvement had been effected in the art, a patent was refused.

New arrangements of printed matter on tickets, cards, &c., the result of fancy or simple mechanical skill, are not proper subjects for patents, however convenient such arrangements may be.

KNIGHT BROS. and FRANCIS FORBES, attorneys.

DOOLITTLE, Acting Commissioner :

The applicant claims

A blotting-pad, having successive portions of a calendar, or successive short calendars printed on successive blotters, with memorandum spaces in juxtaposition to the dates, substantially as illustrated and described, for the purpose set forth.

Each feature of this claim, and a number of them in combination, are old, and admitted to be so by applicant; but what is relied upon as the peculiar good result which characterizes the invention is "the preservation of each blotter a definite and sufficient length of time, so as to insure an economical use of the pad, and thus to prevent waste." This, he alleges, is accomplished by the successive or serial portions of the calendar, or short calendars, and the memorandum spaces as applied to successive blotters.

After an examination of this point, I am convinced that it is not well taken, as the arrangement of the calendar with the memorandum spaces, the latter in juxtaposition with the day of the week, instead of effecting a saving of the pad itself, would obviously often produce a waste, as the

value of each sheet depends, so far as its combined use as a calendar and memorandum is concerned, upon the number of entries made upon each page of the blotter. If it is found unnecessary to make any entries, the sheet must be thrown aside when probably unexhausted as a blotter. I see, therefore, no particular utility in this arrangement. The idea of a daily or weekly calendar upon the pages of a diary or memorandum of course is known to be an old device, and to put such a calendar upon the pages of a blotting-pad does not constitute a patentable improvement, it not being shown that any new art or substantial improvement therein has been produced over the former method.

The greatest advantage which appears to me to arise from this arrangement is the fact of binding together into pad form of successive sheets of blotting-paper, so that when one is used it can be torn off, and the next one comes directly to hand. Advertisements and miscellaneous matter printed upon blotting-paper are old; and the arrangement of memorandum-pads in bound form has been in constant use every where for a long time.

The Office is frequently presented with applications for patents consisting alone, substantially, of a new arrangement of printed matter on tickets, circulars, pads, books, &c. It seems hardly necessary to say that such matters are due entirely to mere fancy or simple mechanical skill, and, being generally arbitrary in their nature, are not proper subjects for patents, however convenient such arrangements may be.

A good deal of reliance is placed on the favorable adjudications of the courts on the Hawes patent (No. 68,839) for a hotel-register book consisting of leaves and interleaves of "bibulous" paper, on which advertisements were printed. But, however meritorious that particular structure was, it does not follow that every variation of the same idea is necessarily patentable.

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

WILLIAM S. GILLEN.

Petition to reopen interference.

O. G., vol. xi, p. 419.

IN THE MATTER OF THE PETITION OF THE ASSIGNEES OF WILLIAMM S. GILLEN TO REOPEN THE INTERFERENCE BETWEEN THE APPLICATION OF SAID GILLEN AND THE APPLICATION OF WILLIAM ROGERS.Decided February 15, 1877.

A patent having been issued to the unsuccessful party to an interference after his withdrawal of the interfering claim, he cannot introduce the same matter in a reissue application, his right to it being res judicata.

An application for the reopening of an interference on the ground of newly-discovered evidence canno be allowed where it appears that the testimony was not newly discovered, but was within the possession of the party from the beginning of the proceedings.

After a patent has been issued the Office has no power to investigate or determine whether or not the patentee has made false suggestions in his oath; nor is it a proper subject of investigation in an interference proceeding.