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In some of his original claims he includes the feature of spreading the flange and causing it to cut into, and become partially embedded in the washer or covering material.

An examination of Neuberth's evidence in both direct and cross examination supports the following statement in the Commissioner's decision:

The description of the operation of the machine as given in the original specification agrees with the testimony of Neuberth who states that the upper part of the washer does not go under the flange, but that the upper part of the celluloid is shifted upon itself so as to make it somewhat thicker on top and the flange of eyelet spread so as to cut into the material.

Neuberth used celluloid thirty-thousandths of an inch thick, and the cutting into this was about five-thousandths of an inch. No portion of the bent washer was turned or bent over under the flange and it seems that all of it that got under the flange is through the spreading of the flange and the cutting in and partial embedding referred to. It appears from the testimony that several of Neuberth's machines were constructed and put in operation in the factory of the Brook Company, to which the invention then belonged. Several millions of eyelets were made and many of them shipped to shoe manufacturers. It is claimed that no objection was made to the utility of these save in one instance, where a manufacturer complained that the covering would come off in fastening the eyelets in shoes. In January, 1903, the manufacture was discontinued, and the machines were converted into use for striking out ordinary eyelets. No good reason is given for suspending this manufacture if the eyelets so made were satisfactory in every respect. A number of these eyelets were produced in evidence.

In the course of Neuberth's cross-examination, he said, upon examination of a cross-section of the die, punch, and eyelet, that there had been a material change in the shape and thickness of the celluloid covering, and that the inner part or throat of the eyelets had been reduced very much

in fact brought down to a sharp edge by the pressure and the celluloid had shifted on itself and made it somewhat thicker on the top. The exhibit also shows that the eyelet blank has slightly cut into the washer as you can observe by comparing the washer and the celluloid side by side.

He was then shown an eyelet taken at random from the mass and admitted that it showed that it has substantially preserved intact the striations produced in manufacture of the sheet-celluloid upon the face of the eyelet. He added:

It also proves, in my estimation, that the celluloid was not in proper condition of softness to be molded; if it had been these would have disappeared.

Another was then taken from the lot manufactured in 1902 and 1903, in which he said the surface striations could be seen upon the outer surface of the celluloid.

X-Q. 163. This shows, does it not, that the thickening on the face of the eyelet has taken place under the surface?

A. It does. How far under the surface it would be impossible to say. X-Q. 164. Then it shows, does it not, that there has been a molecular rearrangement?

A. Yes, there has been a rearrangement.

X-Q. 167. What you observe upon the face of the eyelet causing it to thicken without changing the striation-marks shows an action in the nature of the former, does it not, at this point rather than in the direction of the latter?

A. The eyelet in question shows that there has been a rearrangement; it also shows that the fibers have been ruptured in this rearrangement, showing cleavage-lines on the inner part of the fold of the eyelet, which are characteristic in almost all of our products.

X-Q. 168. In view of the examination which you have made of these eyelets, and the explanations which you have given, do you claim that the edge of the washer is turned under the edge of the flange?

A. Part of it, yes.

X-Q. 169. And when you use the term " turned under" in your specification it should be made to mean the action which takes place as you have testified in this examination?

A. Yes, I should think it would.

This turning under is first described in the amended specification. In the operation of this machine the portion of the celluloid which is under the flange does not lie in a plane parallel to its original position, but in one at right angles thereto. The portion of the celluloid that has been bent over the edge of the flange is not further bent to bring it into contact with the under surface of the eyelet.

The claims under consideration were not made by Neuberth originally, but were filed with his amended specifications, and it is by the latter that their meaning must be determined.

In the amendment, whether the result or not of the examination of Lizotte's application, the mechanism is described as engaging the covering material and bending it over the edge of the flange, and comprising an—

independent member for forcing or turning the bent-over covering material under the edge of the flange and into contact with the under surface of the flange.

And this member as having

a face for engaging the bent-over portion of the covering material and turning it under the flange of the eyelet and into contact with the under surface thereof. The amended sheet of drawings shows more plainly than the original the successive steps of applying the washer to the eyelet, bending it over the edge of the flange at right angles thereto, and then

further bending this bent-up portion under the under surface of the flange and into contact therewith.

Lizotte's machine clearly shows means for pressing a thin diskmuch thinner than that made by Neuberth-against the head of the lacing-hook to shape the celluloid in conformation with the outer surface of the hook. As the operation proceeds another piece of the mechanism bends the washer of celluloid around the edge of the head of the hook. Certain independent "wipers" bend over or turn and crimp the edge of the washer under the edge of the flange of the hook, and by another movement of a die the edges so bent or turned over are pressed down and into firm contact with the under surface of the flange.

Considering the claims of the issue in the light of the specifications of Neuberth as amended, we think that they call for substantially the same operation, that is to say, for two bends of the covering material; the first bending the same at right angles to the edge of the flange, and the second, bending that portion over under the flange for securing it thereto.

Inasmuch as the Neuberth machine, as constructed and operated, was not capable of the operation in the manner intended by the claims of the issue, we must concur with the Commissioner in the conclusion that he has no right to make them.

As this conclusion is sufficient for the determination of the appeal, we deem it unnecessary to consume time with the consideration of the question of Lizotte's reduction to practice.

For the reasons given the decision will be affirmed. It is so ordered, and that this decision be certified to the Commissioner of Patents.

[Court of Appeals of the District of Columbia.]

PEIRCE v. HISS, JR.

Decided March 2, 1909.

141 O. G., 1165; 33 App. D. C., 1.

INTERFERENCE-PRIORITY-CIRCUMSTANCES AND PRESUMPTIONS.

P. filed his application for a cable-hanger after he had obtained knowledge, through an interference, of H.'s application. He claimed to have conceived the invention in issue and reduced it to practice at the same time that he invented a similar device shown in an earlier application on which he obtained a patent. Held that P., being a manufacturer of cablehangers, an inventor, and highly skilled in the art, was certainly in a position to understand and fully appreciate the value of such device, and it was inconceivable that he should have failed to disclose it in his earlier application if he actually had conceived it and embodied it in concrete form.

Mr. Melville Church and Mr. Wilber A. Owen for the appellant. Mr. Alan M. Johnson for the appellee.

ROBB, J.:

This is an appeal from a decision of the Commissioner of Patents awarding priority to Hiss, Jr., the senior party to an interference proceeding. The issue is stated in the following counts:

1. A cable-hanger consisting of a metal clip forming a loop, the ends of said clip forming a coöperating eye and hook and a suspender passing through said eye and forming a loop.

2. A cable-hanger consisting of a clip forming a loop having coöperating securing means on the ends of the same and a suspender permanently engaging said securing means.

The device described in the above counts is used in attaching cables to supporting messenger-wires, and, while the device is simple in construction, it is one of considerable utility. Formerly cables were attached to messenger-wires by the so-called Cameron hook, one end of which was provided with a closed eye through which a loop of marlin was passed and then wrapped about the cable and passed over the hook. The Cameron device was open to objection because of its liability to become detached from the messenger-wire.

Prior to the date claimed by either party as his date of conception Peirce was president of the Peirce Specialty Company, which manufactured the Cameron device, and, being a prolific inventor and patentee and having knowledge of the objections to the Cameron device, he attempted to devise an improved hook. In July, 1904, he did devise a U-shaped hook with the ends bent over so as to form loops. To coöperate with these loops he provided a piece of marlin knotted at either end. On May 31, 1905, he filed an application for a patent on this device, and the patent was issued to him on January 12, 1909. The Patent Office has held that there is a patentable difference between the construction described in this patent and the device of the issue.

This interference was originally declared on June 19, 1906, and then involved Hiss and a party named Swisher. After the preliminary statements had been opened to opposing parties, the Nagel Manufacturing Company, which, meanwhile, had acquired both the Swisher application and the original application of Peirce, procured Peirce to file an additional application dated January 2, 1907, for the construction of the issue.

Hiss took no testimony, but relied upon his filing date.

The testimony on behalf of Peirce is directed to showing that he conceived the device of the issue and reduced it to practice at the same time he invented the device upon which he received a patent. We have examined this testimony, and, while the question is not

free from doubt, we are not disposed, owing to the circumstances under which Peirce's application was filed, to disturb the conclusion of the Commissioner and Board of Examiners-in-Chief. Peirce, being a manufacturer of cable-hangers, an inventor, and highly skilled in the art, was certainly in a position to understand and fully appreciate the value of a device like this, and it is inconceivable, if he did conceive it and embody his conception in concrete form, (which in this case we apprehend would have constituted a reduction to practice,) that he should have failed to include it in his earlier application. Therefore, without entering upon an analysis of the testimony, we affirm the decision of the Commissioner.

The decision of the Commissioner of Patents is affirmed, and the clerk of this court will certify this opinion and the proceedings in this court to the Commissioner, as required by law.

[Court of Appeals of the District of Columbia.]

NELSON V. FELSING AND FELSING v. NELSON.

Decided January 12, 1909.

142 O. G., 289; 32 App. D. C., 420.

1. REISSUE-MUST BE FOR THE "SAME INVENTION "-SECTION 4916, REVISED

STATUTES.

The phrase

same invention" in section 4916, Revised Statutes, relating to reissues of patents, has been repeatedly defined by the courts to mean whatever invention was described in the original Letters Patent and appears therein to have been intended to be secured thereby. (Walker on Patents, sec. 233.) By "new matter" is meant "new substantive matter," such as would have the effect of changing the invention or of introducing what might be the subject of another application for a patent. (Powder Co. v. Powder Works, C. D., 1879, 356; 150 O. G., 289; 98 U. S., 126; Parker & Whipple Co. v. Yale Clock Co., C. D., 1887, 584; 41 O. G., 811; 123 U. S., 87; Corbin Cabinet Lock Co. v. Eagle Lock Co., C. D., 1893, 612; 65 O. G., 1066; 150 U. S., 38.)

2. SAME-IDENTITY OF INVENTIONS CLAIMED HOW DETERMINED,

In the consideration of the right to make claims in a reissue it is not to be concluded that what was suggested or indicated in the original specification, drawings, or Patent Office model is to be considered as a part of the invention intended to have been covered by the original patent unless it can be seen from a comparison of the original patent and the reissue that the invention which the original patent was intended to cover fairly expresses the things suggested or indicated in the original specification, drawings, or Patent Office model and unless the original specification indicated that those things are embraced in the invention intended to have been secured by the original patent.

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