material in nature, of definite properties, to produce like effect to that of another or other well known substance or material in actual use. The appellant states the object of his invention to be to secure greater buoyancy for such floating structures as buoys, life-preservers, boats, rafts, docks, and the like, and to attain greater economy in the manufacturing of these bodies. He claims that he attains all these objects by using, as defined by the claim, pieces of cocoanut husks dried and coated with a waterproof material, instead of cork or other light material heretofore used for like purposes. He claims that cocoanut husk is lighter and cheaper than cork, or any other known material, heretofore used for such floating structures or bodies. He alleges, as an important element in his claim, that the dried husk or pericarp of the cocoanut is not more than one-half the specific gravity of cork; and that its cost is greatly less, and its safety and efficiency, when used in such floating bodies, are greater than that of cork or other material heretofore used for such purposes.

The dried husk of the cocoanut is a well known article of commerce, and is used for various purposes; and its peculiar strength of fibre and lightness, are properties also well known. There is, therefore, no new discovery as to the properties of the material proposed to be used; nor is there any invention, in the sense of the patent law, in the preparation and application of the material. The material proposed to be used may be an improvement over or superior to the material at present in use for like purposes; but this of itself will not entitle the appellant to a patent. It is not every improvement produced by the adaptation or substitution of one well known material for another, in manufactures, that will entitle the party making the improvement to a patent. There must be an invention or discovery of that which is new and useful, within the meaning of the patent law, to entitle a party to a patent. Mere

improvement is not all that is necessary. This was expressly held, and fully illustrated, in the well known case of Hotchkiss v. Greenwood, 11 How. 248. That was a case of a patent granted "for a new and useful improvement in making door and other knobs, of all kinds of clay used in pottery, and of porcelain," by having the cavity in which the screw or shank was inserted, by which they were fastened, largest at the bottom of its depth, in form of a dovetail, and a screw formed therein by pouring in fused metal. In that case it was held, that the knob was not new, nor the metallic shank and spindle, nor the dovetail form of the cavity in the knob, nor the means by which the metallic shank was securely fastened therein; and that the only thing new was the substitution of a knob made out of clay in that peculiar form, for a knob of metal or wood. And though this might have been a better or cheaper article, it was not the subject of a patent; and the patent granted therefor was consequently declared to be void.

In the opinion of the court, at page 266, it is said: "Now, it may very well be, that, by connecting the clay or porcelain knob with the metallic shank in this well known mode, an article is produced better and cheaper than in the case of the metallic or wood knob; but this does not result from any new mechanical device or contrivance, but from the fact that the material of which the knob is composed happens to be better adapted to the purpose for which it is made. The improvement consists in the superiority of the material, and which is not new, over that previously employed in making the knob.

"But this, of itself, can never be the subject of a patent. No one will pretend that a machine made, in whole or in part, of materials better adapted to the purpose for which it is used than the materials of which the old one is constructed, and for that reason better and cheaper, can be distinguished from the old one; or, in the sense of the patent law, can entitle the manufacturer to a patent.

"The difference is formal, and destitute of ingenuity or invention. It may afford evidence of judgment and skill in the selection and adaptation of the materials in the manufacture of the instrument for the purposes intended, but nothing more."

The case just referred to and quoted from was followed in the case of Hicks v. Kelsey, 18 Wall. 670, and the same principle applied to its fullest extent. And so in the more recent case of the Glue Co. v. Upton, 97 U. S. 3, the same principle was applied; and in this last case the court said: "Where certain properties are known to belong generally to classes of articles, there can be no invention in putting a new species of the class in a condition for the development of its properties similar to that in which other species of the same class have been placed for similar development; nor can the changed form of the article from its condition in bulk to small particles, by breaking or bruising or slicing or rasping or filing or grinding or sifting, or other similar mechanical means, make it a new article, in the sense of the patent law."

It may therefore be fully conceded that the improvement upon which the claim of the appellant is founded is valuable, and that such value consists principally in the superiority of the material for the uses to which it is applied, over material now used for similar purposes. But the material is not new, and the substitution or adaptation of the material, to take the place of other material heretofore used, is not the subject of a patent; though, as we have seen, it may be cheaper and in other respects preferable to cork, bark, light wood, or other similar material having small specific gravity.

But apart from the want of invention to entitle the appellant to a patent, the claim here made seems to be fully covered by the patents referred to by the examiners, and by the acting Commissioner in their respective opinions. The Cogswell patent of January 16, 1873, and that of De la Barriere of April 8, 1890, would seem to have substantially anticipated the claim of the appellant; and that, if for no other reason,

would make it improper to grant the patent on the claim of the appellant.

The court, therefore, will affirm the rulings and order of the Commissioner of Patents, and cause to be returned to the Commissioner of Patents, a certificate of the proceedings and decision of this court, to be entered of record in the Patent Office, as directed by the statute; and it is so ordered. Rulings and order affirmed.

HARPER v. CUNNINGHAM.

JUDGMENT RECORD; EFFECT OF POWER OF ATTORNEY TO CONFESS JUDGMENT.

1. Where the record, on the trial of an issue raised by the plea of nul tiel record to a sci. fa. shows that appearance was entered by an attorney of the court and judgment confessed, the record will bind the defendant until it is shown that the attorney acted without authority.

2. The courts of this District have jurisdiction to render judgment upon confession either upon the appearance of the party in person or through a warrant of attorney for that purpose, except in cases within the meaning of the act of Maryland of 1747, prohibiting the exacting of bonds with power of attorney to confess judgment thereon.

No. 378. Submitted December 10, 1894. Decided January 16, 1895.

HEARING on an appeal by the plaintiff from a judgment in a proceeding by sci. fa. to revive a judgment. Reversed. The COURT in its opinion stated the case as follows:

On June 1, 1878, Stephen V. Harper, the appellant, filed a declaration in the Supreme Court of the District against Samuel T. Brown and William Cunningham, trading as Brown & Cunningham, to recover the sum of $149.10, for services performed as pilot on a steam canal boat. The record does not show any service of process in this suit

upon either Brown or Cunningham, but the following warrant of attorney to Joseph J. Waters to confess judgment, appears therein:

"Know all men by these presents, that we, Brown & Cunningham, of Georgetown, District of Columbia, have made, constituted and appointed, and by these presents do make, constitute and appoint, Joseph J. Waters our true and lawful attorney for us and in our names to confess judgment against us in the two suits of John Reaves against Brown & Cunningham; also Stephen V. Harper v. Brown & Cunningham, the one being for 149.10 dollars, and the other for 185.50 dollars, and hereby ratify whatever our said attorney may lawfully do in the premises.

"Witness our hands this 1st day of June, 1878.

"BROWN and CUNNINGHAM." This was, on the same day, acknowledged by Brown before a notary public "to be the act of the firm."

On June 3, 1878, a judgment was rendered against the defendants as partners trading under the name of Brown & Cunningham, for the amount of the claim, by confession. reciting that the "defendants came here by their attorney, Mr. Waters, who enters the appearance of the defendants herein, and consents that judgment be entered herein against them for one hundred and forty-nine dollars and ten cents, with interest thereon from May 27, 1878, besides costs."

Scire facias issued on this judgment June 2, 1890, and was served upon both defendants.

Cunningham pleaded nul tiel record and issued was joined thereon. This was submitted to the court, who found for the defendant and entered judgment accordingly. There was another plea denying service of process in the original suit, and that anyone was authorized to appear for and confess judgment against him therein. This plea seems to have been waived, and the cause submitted upon the first.