ing-gases at a high temperature, passing to and from said mass, whereby the reduction of the ore and the distillation of the resultant metal are simultaneously effected, and the evolved vapors conveyed directly away and separated, as specified.

It appears to be admitted, or at least it is not denied, that the apparatus of Knox and Osborne, in all the essential features necessary to carry out the process stated in the claim under consideration, is not new. It is shown in the patent granted Hegeler and Matthiesson, November 25, 1873, for a furnace for desulphurizing, drying, and calcining ores or other substances, That apparatus appears to have been contemplated for non-volatilizable ores, which were simply to be freed from sulphur by the action of this apparatus, and the pulverized ores, from which the sulphur had been thus eliminated, were to pass down through the openings between the series of inclined shelves, and to be carried away by means provided for that purpose. But the apparatus of Hegeler and Matthiesson is made with a series of inclined shelves, on which the pul verized ore rests in divided masses, while subjected to heated air, and the products of combustion passing between the shelves and over the masses; and this apparatus would, if filled with the pulverized cinnabar (the sole treatment of which is the object of Knox and Osborne), and if subjected to the passage of the products of combustion with the ordinary excess of oxygen above what was necessary to unite with the carbon of the fuel, undoubtedly operate in the way indicated in the claim under consideration.

It is also shown to be old to subject the ore of mercury in lumps to the action of the products of combustion which pass through and over the mass, and which, in their passage, it may be inferred, desulphurize the ore, and convert both the sulphur and quicksilver into gaseous form, in order that they may go over and be condensed and the valuable part thereby retained. This is illustrated in the patent of Dresser, granted December 29, 1868. Quicksilver ores have also been reduced by treatment in a retort in contact with some desulphurizing substance, the whole being subjected to heat applied externally to the retort.

The question to be decided is, whether the use of the old furnace, with the series of inclined shelves, in the reduction of the ore of quicksilver in powdered condition, by subjecting the said powdered ore to the action of the products of combustion therein, amounts to a new and patentable process.

Undoubtedly a process may be patentable though carried out by means of machinery altogether old. Cochrane et al. v. Deener et al., 11 OFFICIAL GAZETTE, 687. But there must be some new and useful mode of operation, or some new result arising from the special adapta. tion of the old apparatus to the new purpose.

In the present case, the action of the products of combustion and air intermixed therewith upon the ore is precisely the same as in the patent of Dresser. The heat volatilizes both the mercury and the sulphur. At the same time the oxygen of the air, carried along with the products of combustion, unites with the sulphur, forming sulphurous-acid gas, thus

leaving the mercury free. Chemically the process is the same as in the Dresser patent. The difference (and I can see no other) lies in the treatment of the ore in pulverized condition and in "divided masses ”— that is to say, lying in separate masses on the series of inclined shelves. But this separation of the pulverized masses is due wholly to the peculiar construction of the apparatus, which consists of the series of inclined shelves. This construction retains the pulverized ore in masses adapted conveniently to receive the heat from the passing products of combustion, and to expose these masses to the heat therefrom obtained. But this is no more than is done in the patent of Hegeler and Matthiesson. The shelved construction of the furnace is purely mechanical in effect. It is contemplated for reducing finely divided ores, irrespective of the special nature of those ores, or any special mode of treatment within the capacity of the furnace. I do not see that this construction of furnace, therefore, can enter as an element, either directly or indirectly, into the process to render it new and patentable. Whether ores be placed in the furnace of such nature that when the sulphur is combined with the oxygen and driven off as sulphurous-acid gas, the residuum remains as a solid or liquid; or whether the ore be cinnabar, and both the sulphur and quicksilver are volatilized, the effect of the shelved construction is the same. The same is true of that part of the construction or operation referred to in the claim as the "direct and indirect action of the reducing gases." It is set forth that the direct action is that of the reducing-gases passing over the pulverized ore, in immediate contact therewith; the indirect action is that of the heat conveyed by the shelves to the masses of ore lying therein. Whether the distinction be essential or not, obviously it is the same, whatever the ore used, since it arises from the construction of the apparatus. In my judgment, these applicants have done no more than to add to the old form of furnace shown in the Dresser patent the improvement devised by Hegeler and Matthiesson. The advantages arising from the old furnace thus improved are those of the speedier treatment by means of the pulverized and divided masses, and those of the direct application of the heated air and products of combustion. But the effect is the sum of the effects of the two old elements, and the union of the two is, therefore, not patentable. Hailes and Treadwell vs. Van Wormer, 5 OFFICIAL GAZETTE, p. 89. The furnace, thus improved, has a direct and invariable function. Whichever of the materials referred to in the application and references may be placed therein its action is the same. The effect may, indeed, be different on the different materials, but these differences are not due to the shelved construction; at least, as I have said, the shelves, considered by themselves, produce no effect upon one material which they do not produce upon another. The whole invention, in my judgment lies in the apparatus, and the apparatus, so far as it could, by any interpretation, be included in the claim under discussion, is old.

The decision is reversed, and the interference dissolved.

The Examiner will notify Knox and Osborne that the claim is refused.

BERING v. HAWORTH.

Decided June 17, 1878.

(O. G., vol. xiv, p. 117.)

1. Diligence on the part of an inventor first to conceive is only to be considered in view of the efforts of another, who, although second to conceive the invention, is the first to reduce it to practice.

2. No period of delay per se is sufficient to deprive an inventor of his patent.

3. The phrase "on or about," when used in a preliminary statement strictly construed and evidence of the transaction prior to the date mentioned in connection with such phrase, excluded.

IN the matter of the interference between the application of James E. Bering, filed May 28, 1877, and the application of Lysander L. Haworth, filed April 13, 1877.-" Improvement in Corn-Planters."

DOOLITTLE, Assistant Commissioner :

The special improvement in controversy relates to check-row cornplanters, and consists in a device for carrying or transferring the checkrow cord or knotted wire over from one row to the other as the planter traverses the field.

The issue, as declared by the Primary Examiner, is as follows:

An arm pivoted to a stake in the ground, so as to carry the check-row cord or wire over laterally as the planter approaches the end of the field.

Haworth's application was filed April 13, 1877, and Bering's May 28,

1877.

The testimony in behalf of Bering is clear in showing that he had this invention in view as early as the 22d of January, 1877, when he illustrated his idea by the use of a needle and thread. January 25 or 26, he made an experimental model, a portion of which is put in evidence, and showed it to several parties on the 26th and 29th of January. This model fully illustrated the working of the invention. I think that January 26 may be considered as the date of the completion of the invention by him, not in a form actually to be used in the field, but in a manner sufficient to demonstrate its successful operation.

It is alleged by Haworth, in his preliminary statement, that he conceived the invention in controversy on or about the 1st of May, 1875. In his testimony he fixes the date of his conception as about the 10th of May, 1875-at the time he made a certain visit to Fairburg, Ill., to examine the operation of wire check-row corn-planters. This statement is urged as a variance from his preliminary statement, but it is not a material one, and certainly it does not make in his favor. On his return from this visit about the time mentioned, he explained to his brother, George Haworth, his idea, and illustrated it by an experiment in their shop in Decatur, Ill. This experiment consisted of fastening one end of a cord to the floor and passing it over a board or scantling a few feet

high, the other end of the cord being held by one of the parties at a distance of fifty or sixty feet from the board. The board was held in its position by Haworth, who placed his foot against the bottom thereof. By these means, they testify, and by holding the cord tight, they were able to move the board and cord laterally, in the manner desired, in transferring a check-cord in the field from one row to another. No evidence was adduced as to this experiment, except the testimony of these brothers; still I fail to see anything in the record affecting adversely the credibility of their testimony. Brothers are not incompetent witnesses for each other, even under the narrow restrictions of the common law. In modern practice, objections to the testimony of witnesses on the ground of relationship or interest go to their credibility rather than to their competency.

It is true that the unsupported allegation of an inventor that he conceived an invention at a certain date is not sufficient to establish such fact, as it is mere testimony of a mental operation which assumed no tangible form; but that is not the state of the case here, as the concep tion of the invention by Haworth in May, 1875, was followed immediately by an actual experiment, which illustrated the principle of this invention quite as clearly and fully as the experiment made by his opponent, Bering, on the 22d of January, 1877, with a needle and thread. A further discrepancy between the preliminary statement and evidence on the part of Haworth is urged from the fact that in the former it is set forth that he had a full-sized model of the anchor made, which was completed on or about the 1st of February, 1877, and that on or about the 15th of February, 1877, he made a full-sized working machine, which worked perfectly, whereas it is alleged in his testimony that these things were done in January. In Haworth's forty-seventh answer, in his testimony in chief, he says that he made one full-sized machine on or about the 1st day of February, 1877, and one model similar to "Exhibit B" about the middle of February, which was sent to the Patent Office. This model, "Exhibit B," he testifies to have made between the 15th and 21st of January, 1877, and on the latter-named day showed it to several members of his family at his father's residence. The experiments made in January are alleged to be inconsistent with his preliminary statement; but the same model shown on the 29th of January, 1877, cannot be considered as inconsistent with the phrase "on or about the 1st of February, 1877." Where such a phrase is permitted to be used in a preliminary statement, a little latitude must be allowed, and the applicant cannot be confined to the specific dates mentioned; neither is it sufficient to discredit the testimony of an inventor that he fails to set forth therein all the facts connected with his invention. It is sufficient if he correctly sets forth in that statement the leading facts in his case, viz, the dates of conception, reduction to form of models or drawings, completion of the invention, and extent of use. But, throwing out of consideration all experiments or models made in January, 1877, prior

to the 29th, we find that on that day Haworth showed a model illustrating the invention, and during the month following made a full-sized operative machine.

The only question remaining is, then, In view of the fact that the date of the conception has been clearly established by Haworth, did he exercise reasonable diligence in perfecting the invention ?

The Examiner of Interferences has correctly stated the principle of law on this point, and that is that diligence on the part of an inventor first to conceive is only to be considered in view of the efforts of another who, although second to conceive the invention, is the first to reduce it to practice. "The question of diligence is not an absolute, but a relative one," and must be considered in reference to the art to which the invention relates, and to the efforts of others in the direction of its introduction to the knowledge of the public. Am. Nich. Pavement Co. v. City of Elizabeth, 6 Fisher, 424; Kendall v. Winsor, 21 How., 322. Unless laches is such that it amounts to evidence of the abandonment of an invention, it should not be urged against an inventor, unless another in the mean time has given to the world the benefit of its disclosure. No period of delay per se is sufficient to deprive an inventor of his patent. Russell and Erwin Manufacturing Co. v. Mallory, 5 Fisher, 632.

Haworth's final experiments and reduction to practice were contemporaneous with, if they did not precede, the efforts of Bering, and he was first also to assert his claims as original inventor by his prior application. Priority belongs to him, and the decision of the Board of Examiners-in-Chief is affirmed.

SUPPLEMENT.-MOTION TO REHEAR.

Decided July 6, 1878.

One part of this motion to rehear is based upon the assertion in the former decision that, when a party is permitted in his preliminary statement to set forth that he did certain things toward completing his invention "on or about" a specified time, he should be allowed some latitude in his proof. In this case, having alleged that he completed a full-sized model "on or about" February 1, 1877, proof was admitted showing that the same was completed on January 29, 1877.

After due consideration, the Commissioner and myself both agree that it was a mistake to allow the applicant using this expression to adduce proof of this matter prior to the specific date alleged.

Where parties are required, as now, by Rule 53 of Office Practice, to show in their preliminary statements the dates of original conception, reduction to drawings or models, and of completion of the invention, and by the same rule are held "strictly" to such dates, they ought not to be permitted to introduce proof showing prior dates of such transactions. This would in effect subvert both the spirit and letter of the rule. The same rule provides how these preliminary statements, which constitute the only pleadings in the case, can be amended before testi