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The learned Judge in that case aptly says: The literature of the art fully sustains the statement of Mr. Schwendler, quoted in Telegraph Journal in 1879, that “we can scarcely expect that the principle of incandescence will be made use of for practical illumination," unless there be discov. ered a conductor without the defects of platinum and “which does not combine at high temperaturo with oxygen."
So far from being a mere substitution of materials, the successful use of a carbon filament in a burner was based upon the newly discovered principle that in a sealed glass bulb exhausted to one-millionth of an atmosphere it offers a bigb resistance to the passage of the current and is stable at high temperatures.
On the other hand, in Kilbourne v. Bingham Company, (C. D., 1892, 477; 60 O. G., 577,) Circuit Court of Appeals, Sixth District, the complainants claimed the exclusive right of making sinks swaged or struck up from a single sheet of wronght steel or iron, without joint, seam, or interior angle. Swan, Judge, said, in substance, that it was not enough that the new manufacture, because of the fitness of the material, had obviated innumerable objections inherent in prior manufactures and had superseded them in the trade, and, therefore, with acknowledged superiority, in the manufacture. Wrought-steel in lieu of cast metal in this article was held to be the mere substitution of materials and the article not patentable.
It is apparent that the practice of the Office and the findings of the courts have in the past twenty years grown more strict respecting the substitution of one material for another, and even yet there may be discovered some fluctuations in the application of the principle; but whatever the difficulties in the application of the doctrine, as illustrated in Hotchkiss v. Greenwood, on the one hand, and Smith v. Dental Vulcanite Co., on the other hand, it is considered that the claims of the applicants clearly fall with those presenting no paten table subject matter. The extended use of aluminum and its alloys naturally follows from its reduction in price from $90.00 a pound for pure aluminum in 1856 to $2.00 a pound in 1889 and for the ten per cent. bronze from $1.64 per pound in 1878 to thirty cents a pound in 1888. The extraction of alumi. num'in commercial amounts, beginning about the year 1874, and rapidly increasing from then to the present time, together with the decreasing ing price, has made aluminum and its alloys available in the making of a larger variety of articles, and doubtless many articles made of this substance will entirely supersede those made of any other. This change is not more significant than that following the cheap production of steel. The use of it in railroad-rails has revolutionized transportation and made the enormous traffic of to-day possible, and yet as an article of manufacture steel rails have never been patented and are thought not to be patentable. In the English patent to Henry Bessemer, No. 2,319, dated October 17, 1855, for improvements in the manufacture of railway-bars, the claims were drawn to processes merely.
If this article were now to be held patentable-a bicycle-frame in usual form-merely because cast in one piece of aluminum alloy, it is difficult to see why a wagon-reach in light vehicles, serving, as it does, the same uses in wagons that a bicycle-frame does in bicycles, must not for the same reason be patentable if made of aluminum alloy by casting in one piece; and yet to hold so would be in contravention of the conclusion of the court in Hicks v. Kelsey, supra, upon analogous facts. The applicants have discovered no new property in aluminum or its alloys, and in their structure they make use of no new property in its substance. Their case exhibits, therefore, the inere choice of materials with which to make articles of manufacture, and this, alike from the decided cases and from the policy of the law, should be free to those skilled in the art.
Finally, whether the state of the art is taken to be that bicycleframes have ever been cast of iron or not, since other articles ap. proaching it in complexity have been cast of iron and other articles have been cast of aluminuin alloys, and by substantially the same processes, it must be held that a bicycle-frame cast of aluminum, in one piece, is not patentable as an article of manufacture, and accordingly the order withdrawing this case from issue is made permanent and the patent refused.
EX PARTE BARK.
69 0. G., 369.
In a Design application showing more than one modification applicant is permitted to show, describe, and claiun modifications generically. Ex parte Hess and Hess (C. D., 1891, 142; 56 0.G., 1334) and ex parte Finck (C. D., 1892, 139; 60 O. G.,
157) overruled. ON PETITION..
DESIGN FOR BILLIARD-TABLES.
Mr. J. N. McIntire for the applicant.
This is a petition iu the nature of a request that the Examiner be instructed that those parts of my case to which the Examiner objects are material to a proper interpretation of the single claim I have made, and therefore go to the merits of the
The Examiner's objection is that two designs are illustrated, and he requires applicant topoint out which one of the two designs illustrated in this case is made the snbject of claim. The description should be amended to conturin to the design retained.
The Examiner holds that until applicant does this it is not clear what his design is, and until he makes it clear action cannot be given on the merits.
It appears to me that the question raised is a mere matter of form. Under the practice as established by amended Rule 64 questions of form are always subordinated to those of merits, and generally formal questions should be postponed until a fiual determination of the merits has been reached. The Examiner therefore should have considered the case on its merits.
To obviate the necessity of another petition, however, it may be indi. cated at this time what practice is thought to be proper in Desigu applications which show more than one modification,
In the decision of December 5, 1893, the practice laid down in ex parte Hess and Hess (C. D., 1891, 142; 56 O. G., 1334) and in ex parte Finck (C.D., 1892, 139; 60 0.G., 157) was followed. On reconsideration, however, I am unable to see why one rule should be adopted in Design cases showing modifications and a different rule in application for mechanical patents which show modifications. In all cases the ques. tions which naturally arise from the fact that the application may show more than one modification should be disposed of in the first instance by the Examiner; but, however this may be, it seems clear that in this particular case applicant should be permitted to show, describe, and claim generically his two modifications.
The Examiner should therefore pass upon the merits of the case, and if there is no objection to the generic claim on the ground of novelty it should be allowed by the Examiner, leaving the question of validity to be passed upon by the courts.
To the extent above indicated the petition is granted.
EX PARTE FOWLER et al.
69 O. G., 1641. JOINT INVENTORS ASSIGNMENT BY ONE OF THEM, WITH REQUEST THAT PATENT
ISSUE TO ASSIGNEE, WILL BE OBSERVED. Where an assignment from one of several joint inventors contains a request that the patent shall issue to his assignee, Held that the request will be observed and the patent be issued jointly to the romaining inventors and the assignee. REQUEST by two of three joint inventors that a request by the third concerning an assignment be ignored. Denied.
FARE-REGISTER. Application of John W. Fowler, William J. England, and Anton E. Nielsen filed April 6, 1894, No. 506,581. Patent dated Oct. 9, 1894, No. 527,387.
Mr. Charles G. Coe and Mr. William H. Finckel for the applicants.
FISHER, Acting Commissioner:
This is a request by two of the three inventors that a request em. bodied in an assignment of the third that the patent issue to the assiguee of the said third inventor be ignored and that the patent issue to John W. Fowler, William J. England, and Anton E. Nielsen as joint patentees of the invention for which as joint inventors and applicants they applied for a joint patent.
The inventors Fowler and England submit that no request to issue can have any force or effect except it come from all three of the invent
te un stitute another for himself. The mati. ors and that Nielsen cannot substitute another for himself. The peti. tioners seem to regard joint inventors as copartners; but they bear no such relation. They are tenants in common, and each has a right to dispose of his estate without the least reference to any of the others, and his assignee bas the same right to be named iu the title as if he were the assignee of all three. (See Rob. on Pats., Vol. II, sec. 795, et seq.)
The request must therefore be denied.
SECRETARY OF THE INTERIOR,
69 O. G., 639.
RENEWAL OF FORFEITED APPLICATIONS:
The right of an applicant to renew a forfeited application under section 4897 is exhausted when once exercised.
DEPARTMENT OF THE INTERIOR,
Washington, D. C., October 12, 1894. SIR: Referring to your letter of the 22d of June, 1894, requesting to be advised as to whether section 4897, Revised Statutes of the U. S., provides for more than one renewal of an original application for patent, I transmit herewith a copy of an opinion of the Assistant Attorney-General for this Department thereon, to whom the matter was referred, and have to state that the conclusion therein reached meets with my approval. Very respectfully,
WM. H. SIMS,
Acting Secretary. The COMMISSIONER OF PATENTS.
DEPARTMENT OF THE INTERIOR,
Washington, D. O., June 30, 1894. To the Secretary of the Interior.
SIR: I am in receipt, by reference, of a communication from the Commissioner of Patents, submitting for my opinion the following question:
“Does section 4897, Revised Statutes, provide for more than one renewal of an original application, even though attempt is made to file the second renewal within two years from the original date 9"
Section 4885 of the Revised Statutes provides as follows:
Every patent shall bear date as of a day not later than six months from the time at which it was passed and allowed and notice thereof was sent to the applicant or his agent; and if the final foo is not paid within that period the patent shall be withheld.
Failure to pay the final fee within six months from the date when the application was passed and allowed and notice thereof was sent to the applicant forfeits the right to a patent under said application; but section 4897 of the Revised Statutes provides that:
Any person who has an interest in an invention or discovery, whether as inventor, discoverer, or assiguee, for which a patent was ordered to issue upon the payment of