also swears that in 1863, as he believes, though he will not swear positively that it was not in 1862, or in 1864, or in 1865, Hermance showed him a model embodying the same idea. This sketch and this model constitute the only evidence that he reduced the idea to practical form previous to the filing of the amended drawing in 1869. But the sketch, as has previously been remarked by the examiner of interferences and by the board of appeals, is so rude and indefinite as to be utterly valuless as testimony upon any disputed point; and the model is neither produced nor its absence accounted for. This model, moreover, as Davenport says, was a temporary affair, used by way of illustration only, it being Hermance's declared intention, "to make a better model;" and the witness is unable to swear positively that he saw it at any time earlier than the date, viz, January 3, 1865, when it is proved that Bussey had placed in the hands of his attorney a model of the same thing, which was afterward sent to the Patent Office in support of Bussey's first application.

But if it be believed that Hermance actually showed Davenport a model of the improvement in the year alleged, viz, in 1863, it must be held that he has abandoned the invention; for he failed to lay any claim to it in January, 1865, when he learned in Parks's office at Troy that Bussey claimed to be the inventor, and was about to apply for a patent upon it; afterward, when he himself came before the Patent Office as an applicant, he presented a different invention, and in his original specification specially disclaimed the improvement in question; and he only asserted a claim to it in December, 1869, after it had been patented to Bussey for more than four years, he, Hermance, having knowledge of this fact all the time. Such conduct would work a forfeiture of a party's right to a patent even upon a completed invention. But in this case the better view doubtless is, that the improvement was never reduced to practice by Hermance so as to satisfy the requirements of the patent law, unless when he incorporated it in the pending application by the amendment of 1869. Bussey must, therefore, be adjudged the prior inventor of it.

The ninth claim relates to a series of apertures near the upper edge of the boiler for discharging the steam into the flue. Contrary to the opinion expressed by the board of appeals, there is a direct interference between the parties upon this point. The apertures are distinctly shown in a patent granted to Bussey on the 24th of July, 1866, not previously referred to in this decision, and manifestly overlooked by the board.

The application for this patent was filed on the 10th of July, and there is no evidence establishing an earlier date of invention by Bussey than the date of filing. But the apertures are found in one of the models deposited by Hermance in January, 1865. Hermance, therefore, is adjudged the prior inventor of this feature.

As regards the eighth claim, I agree with the board of appeals that the interference should be dissolved.

Question is made as to whether the long delay of Hermance to prosecute his application, after the rejection of it in 1866—a delay of more than three years-is not to be accounted as an abandonment of the invention. This question was raised before the Commissioner in 1869, when Hermance petitioned, in substance, for leave to restore his application to the docket of pending cases. It was then decided negatively, and will not now be reopened.

To recapitulate: As to the first, second, seventh, and eighth claims, the interference is dissolved, the first three claims being rejected, and the last one allowed. As to the subject-matter of the third, fourth, fifth, and sixth, priority is awarded to Bussey, and on the ninth and tenth to Hermance.

In the further prosecution of the case Hermance will be required not only to limit his claims in conformity with the foregoing decision, but to amend his drawings and description so as to exclude from them everything not warranted by the models and the drawings first filed in the

case.

It may be added that in the previous action of the Office, permitting Hermance to withdraw certain claims from his application and take a patent upon them during the pendency of the interference, there has been a misapprehension of the real intent of rule 61. That rule per

mits claims to be withdrawn from an application during the pendency of an interference and embodied in a new application; but only when the claims so withdrawn cover inventions which do not involve the devices in interference. By this it was not intended merely that the claims so withdrawn shall be technically different from those of the opposing party to the interference, but that they must be for an entirely distinct and separate part of the invention, so that a patent granted therefor shall in no way prejudice the interests of such other party.

In the present case, the relation between the claims remaining in Hermance's application and those withdrawn and embodied in a separate patent, is too close to justify any such division as was made; at any rate, so long as there was any dispute as to main features, to which, in some degree, all the claims relate.

PHILIP W. MCKENSIE.

Extension.

August 17, 1871.

In the matter of the application of Philip W. McKensie for the extension of the patent for IMPROVEMENT IN CUPOLA AND OTHER FURNACES, issued August 25, 1857, and reissued December 27, 1864. LEGGETT, Commissioner:

This invention relates especially to cupola furnaces, used for melting

iron for iron-founderies. The claims in the patent fully set forth the features of the invention.

The examiner reports that this invention was new at the date of the original application, and that the patent was properly reissued.

The testimony shows the invention to be useful and important to the public. It also shows that the inventor used due diligence in introducing the invention, and has failed to obtain a reasonable remuneration therefor.

The applicant appears to have complied with all the requirements of the law in matters of extension. The testimony presents a meritorious case, and there is no opposition.

The patent will be extended.

CHARLES. H. SAYER.

Extension.

August 17, 1871.

In the matter of the application of Charles H. Sayer for an extension of letters-patent for an IMPROVEMENT IN CULTIVATORS, granted to him August 25, 1857.

LEGGETT, Commissioner:

From the testimony it appears that this cultivator is of great value, and has taken the first premium at many agricultural fairs. It is formed of a longitudinal central beam, to the forward end of which are hinged two side beams; and to the rear end of which are pivoted two slotted, overlapping braces, clamped together, for the purpose of fixing the side beams at any angle with the central one. All the beams have, extending along a great portion of their length, one central slot, into which are clamped, at any point and at any angle with the beams, the shanks of the cultivating-teeth. Different kinds of teeth may be used. Applicant having made a case under the statute, and no opposition appearing to its extension, it is accordingly granted.

T. F. TAFT.

Extension.

August 17, 1871.

In the matter of the application of Timothy F. Taft for the extension of letters-patent No. 18,025, for SHEARS FOR CUTTING METAL, granted him August 18, 1857.

The decision first prepared in this case was as follows:

The invention sought to be extended consists of shears for cutting metal, so constructed that the upper edge of the movable blade constitutes the inclined plane on

which the wheel travels, while the wheel itself is compelled in its movement of translation to follow a horizontal direction by means of a horizontal plane in the opposite side of its circumference, and a supplementary wheel interposed between them. The bearing surfaces of the two wheels and two planes are plain, and, to avoid slipping from want of proper traction, the wheels and planes have severally cogged plates attached to them which mutually interlock.

Affidavits have been filed of three intelligent and apparently disinterested persons, as well as the affidavit and statement of the patentee, and they all agree in representing the machine in question as enabling a man to accomplish one-third more work in a given time, and as doing the work better and with more ease than any other machine with which they are acquainted.

The examiner in this case reports:

“After a careful examination of the application, it is believed that the invention was new at the time the patent was granted; that it is valuable, and important to the public; that the patentee has not been reasonably remunerated, and that his failure to be so remunerated has arisen from no fault or neglect on his part."

From the examination of this case, I am satisfied all the requirements of the law have been complied with, as relates to extension, and accordingly the prayer of the petitioner is hereby granted.

Subsequently this decision was recalled, for reasons which appear below, and a new one rendered, as follows:

LEGGETT, Commissioner:

Upon the hearing of this case, it appeared upon the records of the Office that the patentee, Timothy F. Taft, had assigned all his interest in and to said patent, including the extension, if granted, to one Lucius W. Bond, by assignment, dated November 22, 1867.

I called the attention of the attorney to this matter, and informed him that the Office would not extend patents for the sole benefit of assignees, and could not under the law. He then said that said assignment was given to Bond in the nature of a mortgage, to secure borrowed money, and that on June 13 last Taft had settled the matter, and on that day the patent was reconveyed to Taft; but that he had neglected to have the re-assignment recorded. The attorney then took the re-assignment from among his papers, and had it put upon record, and assured me that it was a bona fide document, and that the whole title was then in Taft, and upon this assurance and belief the decision extending the patent was made.

As soon as the decision was made, the attorney took from his pocket another assignment from Taft to Bond, also bearing date June 13, 1871, and filed the same for record, thereby falsifying the statement that the title in the extension was in Taft, and further showing the reconveyance to Taft was a mere fiction to deceive the Commissioner of Patents. The records of the Office further show, that on the 22d June, 1871, Taft also assigned all his right, title, and interest in the extension to one Elizabeth H. Taft. He comes to the Office for an extension, and assures the Commissioner that he has, in his own right, the entire interest in the extension, while, in fact, the records of the Office show that, in June last,

he sold for a merely nominal price to two distinct persons, by two separate assignments, all his interest in the extension, if granted.

In view of these facts, the former action of the Office granting extension in this case is revoked, and the extension is refused.

G. W. N. YOST vs.. WM. HESTON.

Interference.

APPEAL FROM EXAMINERS-IN-CHIEF.

August 19, 1871.

In the matter of the interference between the letters-patent of G. W. N. Yost and the application of William Heston, for letters-patent for an IMPROVEMENT IN MOWING-MACHINES.

DUNCAN, Acting Commissioner:

The elaborate written argument in behalf of Yost, and the voluminous testimony filed in the case, have all received careful attention. Leaving out of sight all question as to the credibility of Heston's witnesses, I agree fully with the opinion expressed by the examiner of interferences and the board of appeals to the effect that Yost's own evidence is sufficient to establish that, as between him and Heston, priority is with the latter. The able discussion which the question has received from those two tribunals leaves but little to be said.

The "Climax" mower was invented mainly by Yost, and in 1868 was being manufactured by the Corry Machine Company. The machine was a new one, and was far from perfect. One serious defect in it was the lack of suitable means for elevating or depressing the outer end of the finger-bar, above or below the level of the point at which the finger-bar was attached to the coupling-frame. To remedy this evil was considered by Yost and the other officers of the company to be an important matter. The device now in controversy was intended for this purpose, and the first suggestion of anything approximating to it, according to Yost's own statement, came from Heston, who, in the month of November, 1868, showed him a small wooden model, in which the elevation and depression of the finger-bar could be effected by means of a lever placed at right angles thereto. Yost says that he was well pleased with the idea, and told Heston to go on and apply it at once to one of the full-sized machines; that Heston objected, as he wished first to experiment upon it, and perfect it; that he then put one of the workmen about the establishment under Heston's orders, to aid him in making a more perfect model of metal; that Heston found difficulty in getting his invention to work well in this model, and was so long completing it, that he, Yost, grew impatient, and seeing the practical objections in the arrangement proposed by Heston, himself made certain changes, which he at once embodied in practical form by applying them upon one of the large machines.