Scribner, and the complainant "actually abandoned the said alleged invention." In respect to infringement the respondents allege

*

that they have not since January 28, 1890, [as charged in the bill,] or at any other time made, used, or sold any electric lamps embodying the invention described and claimed; that since the 28th of January, 1890, they have made certain electric-arc lamps in accordance with and under and by virtue of the patent to Elmer A. Sperry, dated the 18th day of June, 1889, No. 405,440, and the invention therein described and claimed.

The court below found and held that the application for the patent had been abandoned before the letters were granted, by reason of the failure of the applicant to prosecute the same within two years after action thereon, as required by section 4894 of the Revised Statutes, and dismissed the bill for want of equity. Counsel for the appellee insists that the record shows abandonment of the invention as well as of the application.

The facts pertinent to the question of abandonment are as follows; Scribner's application for the patent in suit was filed January 2, 1883. On the 25th of the same month the Patent Examiner wrote him to the effect that the claims were rejected on references cited, and nothing further was done until the 26th of December, 1884, when Scribner's attorney wrote to the Commissioner of Patents

Please reconsider last official action, etc.

to which, on January 9, 1885, an Examiner replied:

Further action will be taken in this case when the requirements of Office Rule 67 have been complied with. No invention has been pointed out in this case over the references of record and none is believed to exist. The last official action is repeated.

The next movement was made July 25, 1885, when the applicant proposed amended claims, and from that time there were communications dated, respectively, August 13, 1885, July 6, 9, and 16, and October 13, 1886, August 10, 1887, and September 15, 1887, the last being to the effect that claims 2 and 3, as they then stood, were indefinite in form and did not clearly distinguish the construction sought to be covered. To this the applicant made no response nor took other step in the matter until August 30, 1889, when he wrote to the Commissioner in support of his claims, and in conclusion said:

Applicant's attorney being in doubt whether the action of September 15, 1887, would be considered a final or second rejection, files this request for reconsideration, and asks that action be had thereon immediately, in order that the appeal may be perfected. If the Office holds, however, that the action of September 15, 1887, was a second action, this paper may be returned to applicant's attorney and the appeal filed.

The necessary papers and money for the taking of an appeal accompanied the letter. On September 9, 1889, the Examiner responded to the effect that the action of September 15, 1887, was of a purely formal character, the repetition of which would not warrant an appeal to the Examiners-in-Chief, and concluded by saying:

As the action of September 15, 1887, appears on reconsideration to have been weil taken, it is now repeated, but the appeal filed cannot be entertained for the reasons above explained. Applicant's remedy is by a petition to the Commissioner, as indicated.

On October 1, 1889, the same Examiner declared the application abandoned because there had not been proper action by the applicant within two years after September 15, 1887. The action of the Office on that date having been upon the form of the case, by the last paragraph of Rule 171 the applicant was required, as the Examiner held, to treat the formal matter within two years; but instead of doing that he had requested a reconsideration, and at the same time filed an appeal to the Examiners-in-Chief, the rule of practice being that action upon the merits cannot be had until all formal objections have been disposed of. On October 29 ensuing, this decision was overruled by a new Examiner, meanwhile come into office, who—

In view of the fact that a reconsideration of claims 2 and 3 was requested within the two-year limit after the action of September 15, 1887, (by which objection to their form was made,) and in view of the fact that such reconsideration was accorded, (as shown by the letter of September 9, 1889, in which the Examiner refuses to act upon the merits of the case and file the appeal, and repeats the formal objection.)— held that the ruling that the application had been abandoned was not justified, was made through oversight, and was therefore withdrawn. On December 12, 1889, the applicant presented an amended specification, and on January 28, 1890, the patent was issued to the appellant as the assignee of Scribner.

The drawing which accompanied the original application has not been changed, and the specification remains substantially the same as at first, except that by the amendment of December 12, 1889, the part in brackets was added. The specification, claims, and drawing of the patent are as follows:

My invention herein set forth relates to electric-arc lamps in which a regulatingmagnet is attached rigidly to the frame of the lamp and a suspended lifting-magnet is employed, as hereinafter described and claimed.

In lamps now in common use, including those in which the lifting-magnet is wound differentially, one winding being a portion of the main circuit and the other a portion of a shunt around the arc, and also including those lamps like the Von Hefner Alteneck, (United States Patent No. 243,341, June 21, 1881,) in which the lifting-solenoid in the main circuit and the solenoid in the shunt of the arc act upon the same carbon rod, the current of the main circuit acts in opposition to the current of the shunt of the arc. In all these lamps the armature of the lifting-magnet, in order to compensate or feed, moves away from the poles of said lifting-magnet. This movement of the lifting-armature away from the poles of its magnet, which produces the feed, is caused chiefly by the variations in the strength of the current of the shant of the arc. As the strength of the current in the shunt of the arc increases, the armature of the lifting-magnet moves away and causes the feed. The compensation for the inequalities of the current is caused chiefly by the variations of the strength of the current of the magnet in the main circuit. In my lamp, however, as herein described, the electro-magnet in the shunt of the arc does not act in opposition to the electro-magnet in the main circuit. The strength of the lifting-magnet is not

changed, nor is the position of the armature of the lifting-magnet changed relatively to the poles of said lifting-magnet, by variation in the strength of the electromagnet in the shunt of the arc.

The accompanying drawing, which is illustrative of my invention, shows a front elevation of an electric-arc lamp.

The circuit may be traced from hook a by wire b, through the suspended lifting-magnet c, and thence to the carbonrod d, and thence through the arc e and by wire f to hook g. The regulating-magnet h is included in the shunt of the arc and attached rigidly to the frame i of the lamp, and controls the regulating mechanism of the lamp. The three pieces k, l, and m, pivoted as shown, form a kind of pivoted armature-lever supporting the lifting-magnet e, the poles of which extend toward the liftingarmaturen, that carries the usual friction-clutch o. The liftingarmaturen, with its suitable movable supporting parts, is carried up and down with the liftingmagnet. It should therefore not extend either above or below the poles of the lifting-magnet. The two ends of the lifting-armature come, preferably, opposite the centers, respectively, of the two poles, as shown. The armature p of the regulating-magnet is mounted upon the pivoted armature-lever. The frame is held suspended by means of the adjustable retractile spring q. Armature of the main-circuit magnet is mounted upon armature-levers n', pivoted to the frame of the lamp. The clutch o is suspended directly upon the lower one of these two pivoted levers upon which the armature n is mounted.

The operation of my lamp as thus described is as follows: As soon as the circuit is closed, the armature n is raised by the lifting-magnet and the clutch o lifts the rod, thus separating the car

bons and establishing the are, as shown. The action of the magnet h will at the same time draw upon its armature against the tension of spring q. The spring q must therefore be adjusted to sustain its armature-lever and the parts it supports after the lifting-magnet has raised the rod. The armaturen will move as the magnet

13182 PAT-37

c moves. It has also a compensating motion up and down as the strength of the magnet e increases and diminishes. As the resistance of the arc increases, the regulating-magnet becomes more strongly magnetized, and the armature p is drawn downward, and also piece 7, which carries the lifting-magnet c. The lifting-armature n, it is evident, will descend at the same time, thus compensating and feeding as the current varies or the carbons burn away. It will thus be seen that the current in the shunt of the arc acts to change the position of the lifting-magnet and its armature. This action is in no way opposed to the action of the current which is passing through the coils of the lifting-magnet. Increase of the current in the shunt lowers the armature p and the lifting-magnet e just the same without reference to the magnetic force of the lifting-magnet-[that is to say, armature n is attracted by the main-circuit magnet and assumes a definite position with relation thereto, which position it holds no matter what changes may take place in the strength of the shuntmagnet. Armature n, through the attraction of the main-circuit magnet, is connected through magnetic action with armature-lever k 1 m, and the movements of this armature-lever in responding to the changes taking place in the electro-magnet in the shunt of the arc are communicated to armature n, its lever, and to clutch o. Thus it will be seen that clutch o is carried and controlled by the pivoted armaturelever k l m and the pivoted armature-lever upon which said clutch is supported.] The compensation and feeding of my lamp is thus more delicate and reliable than in lamps heretofore known or used.

I claim as my invention

1. In an electric-arc lamp, the combination, with an electro-magnet in the shunt of the arc and its armature, of an electro-magnet in the main circuit and its armature, said electro-magnet in the main circuit being carried upon a movable support, said support being controlled by the armature of the electro-magnet in the shunt of the arc, whereby the position of the main-circuit electro-magnet and its armature is caused to vary in response to the variations in the strength of the current passing through the electro-magnet in the shunt of the arc.

2. In an electric-arc lamp, the combination, with a clutch suspended upon suitable movable supporting parts, an armature forming part of said movable supporting parts, an electro magnet in the main circuit with its poles presented to said armature, a regulating mechanism pivoted to the lamp-frame and carrying the main magnet, and an electro-magnet in the shunt of the arc with its poles presented to an armature carried by said regulating mechanism, whereby the position of the carbon-feeding mechanism is varied as the strength of the magnet in the shunt varies independently of the action or electrical condition of the magnet in the main circuit.

3. In an electric-arc lamp, an electro-magnet in the shunt of the arc, a pivoted armature-lever responding to the changes in the strength of said shunt-magnet, in combination with a magnet in the main circuit and a pivoted armature-lever responding to the changes in strength of said main-circuit magnet, a carbon rod, and clutch for the same, said clutch being carried and controlled by the said armature-levers, whereby the movements of either armature-lever may be communicated to the clutch to feed and regulate the lamp.

In his specification for patent, No. 415,571, Scribner made the following statement concerning the application for the patent in suit:

In my application, Serial No. 80,752, filed January 2, 1883, I have described a lamp in which the position of the lifting-armature relative to the poles of the liftingmagnet remains unchanged by any action of the shunt-magnet, a change in the relative positions of said lifting-armature being only effected by a change in the strength of the main current. In this case, however, the lifting-magnet is made movable and moves with its armature by the action of the shunt-magnet.

The specification of the Sperry patent, No. 405,440, after giving a

lengthy and minute statement of the construction and operation of the device, concludes with the following comprehensive description:

The entire device consisting of the parallel moving frame supported on elastic bars and containing the main-circuit electro-magnet or solenoid and carbon-rod clamp is described as a carbon-separating device, since its office is to seize and separate the carbons in the first instance. The entire frame is then bodily moved by means of the derived-circuit electro magnet or solenoid for the purpose of feeding the carbons.

Of the eighteen claims of this patent, some of which are distinguishable from others only by very slight differences, the first is as follows:

1. In an arc lamp, the combination of a main-circuit electro-magnet or solenoid with a moving frame on which it is supported, a carbon rod-clamping device moved by said electro-magnet or solenoid, and a shunt-magnet or solenoid adapted to move. said frame.

Before FULLER, WOODS, and JENKINS, Judges.

WOODS, J. (after making the foregoing statement:)

There is a material difference between the abandonment of an invention and the abandonment of an application for Letters Patent thereon by failure to comply with section 4894 of the Revised Statutes. The first gives the invention to the public, and once done the act is irretrievable; but, besides the power conferred upon the Commissioner of Patents to relieve an applicant from an abandonment of his application under the statute, an application, which has lapsed or been rejected or withdrawn, may be renewed or repeated so long, we suppose, as the invention itself has not been abandoned by reason of a two years' public use or otherwise. The subject has been considered by the Supreme Court quite fully in (Woodbury Patent Planing Machine Co. v. Keith, C. D., 1880, 428; 17 O. G., 1031; 101 U. S., 479,) where, after citing Kendall v. Winsor (21 How., 292,) and Shaw v. Cooper (7 Pet., 292,) the Court says:

These were cases, it is true, where the alleged dedication to the public or abandonment was before any application for a patent; but it is obvious there may be an abandonment as well after such an application has been made and rejected or withdrawn as before, and evidenced in the same manner. In Adams v. Jones (1 Fish. Pat. Cas., 527) Mr. Justice Grier said: "A man may justly be treated as having abandoned his application if it be not prosecuted with reasonable diligence; but involuntary delay not caused by the laches of the applicant should not work a forfeiture of his rights." The patent law favors meritorious inventors by conditionally conferring upon them for a limited period exclusive rights to their inventions, but it requires them to be vigilant and active in complying with the statutory conditions. It is not unmindful of possibly intervening rights of the public. The invention must not have been in public use or on sale more than two years before the application for a patent is made, and all applications must be completed and prepared for examination within two years after the petition is filed, unless it be shown to the satisfaction of the Commissioner that the delay was unavoidable. All this shows the intention of Congress to require diligence in prosecuting the claims to an exclusive right. An inventor cannot without cause hold his application pending during a long period of years, leaving the public uncertain whether