the purpose. Pending that time it was within the custody of the railroad company, the company having the same relation to it that the company acquired by its receipt and had during its transportation. The bill of lading is definite, as we have pointed out, in its provisions and of the time at which responsibility of the company shall be that of warehouseman, and by necessary implication, therefore, until that responsibility attaches, that of carrier exists."

LOCATING A MINING CLAIM ACROSS STRIKE DOES NOT DEFEAT EXTRA-LATERAL RIGHTS.-When a prospector discovers a vein of ore on public lands, he is entitled to lay out a claim on the surface running parallel with the vein 150 feet long and 600 feet wide. If the apex of the vein is on the claim, the claimant may follow the dip of the discovery vein beyond the end lines, but is not entitled to ore beyond the side lines. But suppose the prospector makes a mistake as to the direction of the vein and lays out his claim at right angles to the strike, is he entitled to regard his side lines as end lines in order to follow the dip of the vein? The Supreme Court of the United States has settled this troublesome question in the recent case of Silver King Coalition Mines Co. v. Conkling Mining Co., 41 Sup. Ct. 426, holding that where a claim is located so that the vein crosses the claim, instead of running lengthwise, as in the typical case, the locator does not thereby lose his extralateral rights on the dip of the vein beyond his end lines, under Rev. St. § 2322, but what he intended for his side lines are treated as his end lines, and he is entitled to the dip between vertical planes through those lines.

The defendant contended, however, that plaintiff had not established the fact that the vein crossing his location was his discovery vein. In this case there was some evidence that there was a vein running the length of plaintiff's claim and defendant contended that, at any rate, there was a presumption that this vein was the discovery vein. The Court of Appeals favored defendant's contention, but the Supreme Court held that there was no such presumption and that the evidence was not convincing that there was, in fact, any other vein.

Why a special patent court? asks T. W. Shelton, in your issue of May 13th. My answer is:

Because rational decisions upon scientific questions are not customarily rendered by courts as at present constituted. Hence the aim and object of the Constitution to encourage progress in scientific and liberal arts is defeated by the common holding of legal facts inharmonious with natural law and antipodal to mechanical effect. Wholesale blackmailing of the public is carried on in the exploitation of unscientific decrees. rendering the situation intolerable.

The report of the Patent Law Association on the Oldfield Bill, page 8, February 15, 1913, says:

"That patent litigation is expensive, results uncertain and decisions conflicting, must be admitted."

Thus, this complaint is not that of a mere engineer as the lawyer-like assumption of Mr. Shelton, would mislead one to infer.

The statutory qualification for the examiner passing on the grant of the patent is that he possess competent scientific ability and legal knowledge combined. That is, familiarity with the subject of the art which determines novelty and knowledge of the

[This article. by an eminent engineer, in answer to the editorial by our Associate Editor, Mr. T. W. Shelton, is interesting as presenting the viewpoint of a profession vitally interested in a particular class of judicial decisions. The tone of the article bears out the statement of Dean Roscoe Pound, of Harvard, that there is a growing disposition on the part of other learned professions to question the competency of the lawyer to determine scientific problems with which such other professions are more specially familiar.-Ed.]

mechanical principles or natural law of action which differentiates between inventions of the same class.

The qualification of the judge on the other hand who now determines the validity of the patent grant and decrees its scope and effect is that of legal knowledge, i.e., familiarity with the principles of equity which can be intelligently applied only in the light of precise understanding of the state of the art and mechanical laws involved, and the Federal courts without scientific training or knowledge of the arts customarily reverse the Federal Examiner who has ruled upon the matter in the light of his dual qualification.

Thus, before a court, lacking in familiarity with the history of the art and scientific principles involved, the trial for infringement at times is comparable to the Salem trial for witchcraft in Colonial days when the guilt or innocence of the party was determined by the unscientific belief or mechanical ignorance of those who adjudged the case.

The invaluable kind of assistance or duplicity by which opposing counsel put it over the scientific inefficiency of the court is sufficiently warned against by the argument of Mr. Shelton's communciation and his specifications regarding the employment of the right kind of an attorney to put it

Such a warning is a parody indeed on the equity and justice of the present system of adjudication of scientific causes.

With the rapid advance in the complexity of the scientific arts, frequency of irrational decisions on the equities of patent causes is increasing by leaps and bounds. As a matter affecting the interest of the layman and the dignity of the law, ex parte hearings are inadequate for the public weal. The error of presumption of the charge in Mr. Shelton's argument that the writer, as a layman, sought a forum in which the lawyer and his views are excluded can be verified by submitting his refutation to the editor of Cement and Engineering News on the specific charges made therein, to-wit, that in

a comprehensive analysis of eight decisions, one by the Supreme Court, four by Courts of Appeal and three by Circuit Courts, twenty-two out of twenty-three engineering questions relating to resistance of materials. were erroneously decided therein and each and every erroneous decision constituted a reversal of the holding of the scientifically trained examiners of the United States Patent Office, an inexcusably pitiful record of inefficiency and error.

The lawyer's viewpoint is that the best results may be secured in the adjudication. of patent causes by the judge unfamiliar with the art and possessing that judicial temperament arising from perfect lack of information regarding the subject-matter and his determination of the questions at issue through lawyer-like presumption and assumption rather than by the application of scientific laws and principles which he could not be expected to acquire without years of painstaking effort and study, differs indeed from the viewpoint of the engineer.

Lawyer-like presumption is found in Mr. Shelton's assumption that it is well to emphasize that the government is not an accommodating assembly of individual views, but that it is a co-ordinated system of scientific principles so interdependent that the failure of one to function is adversely reflected in every other. It would seem that it is a most accommodating assembly of individual views, indeed, from the divergence of opinion between judicial holdings of the patent office examiners and the Federal Courts in the eight cases analyzed by the writer. Of the co-ordination which Mr. Shelton's theory of the ideal in patent adjudication presumes now to exist, hardly a trace can be found, as the chemist would say, by the most careful analysis. Such lack of co-ordination is the thing to be remedied by the scientific patent court.

It is known that the specialist prepared to pass instantly upon questions in his special line can do so with accuracy and dispatch, whereas the judge pressed with an enormous amount of work is both inaccurate

and lacking in expedition in arriving at his conclusions. In a single decision by a judge whose salary amounts to $7500 a year, the public is sometimes fleeced one hundred times the amount of his salary in the course of five to eight years, although the patent litigant against whom the judgment of infringement was originally rendered may not be held for a single cent because of the unscientific nature of the decision subsequently to be reviewed in respect to utility of the grant in the accounting before the amount of damages or profits are awarded. The decision on the technical question of infringement is in the meantime exploited, the public blackmailed for years before any step is taken by the courts to eradicate such public nuisances.

Mr. Shelton states faulty decisions often result from neglect of the attorney to file a petition for rehearing. As a practicing attorney he has probably filed such petitions in other than patent causes, and thus is unfamiliar, as the patent litigant is, with the fact that this procedure of the law in patent causes is comparable to the vermiform appendix in the human anatomy-it causes much trouble and expense, but what useful function it performs no man knoweth. The honest patent attorney frankly advises the litigant that the only beneficial result of filing such petition is to pave the way for petition for certiorari to the Supreme Court of the United States, which rarely goes into matters of mechanical fact or disturbs an error of a court of appeals reversing in effect a natural law.

If the five leading patent attorneys whom the writer has employed at different times and requested a citation of a single example where a court of appeals had granted a petition for rehearing because the court had erred in reversing a fundamental law of nature, were unable to discover such an example, perhaps Mr. Shelton will be able to improve on their findings, and if so, his research will be of value and interest alike to the lawyer and engineer.

The argument of Mr. Shelton upon what Thomas Jefferson would say today as to the idea of the scientific man passing upon scientific questions brought before the court is worthy only of the passing remark that Thomas Jefferson's knowledge of the present-day mechanical contrivances would be se archaic that his opinion of the proper method of the trial of the scientific cause would be immediately admitted by him could his shade be interviewed today as beyond the scope of his comprehension. Indeed, the scientific performance of the wireless telegraph and telephone would have resulted very likely in the trial for witchcraft of the inventor responsible therefor had he lived in Thomas Jefferson's day.

We have undoubtedly a very perfect system of rules of equity, rules which are antipodal to each other dependent on the state of facts to which they are to be applied. Court blunders arise in general in applying a correct rule to an assumed state of facts inconsistent with the actual state. This may be illustrated by a further analysis of one of the cases cited in the Literary Digest. In this case change of degree was the principle relied upon by the successful attorney. This principle in simple language is that a change in form or proportion of the part increasing the strength of a member does not take it from under a patent unless the change produces a new mode of operation, i.e., a new mechanism. Consider now the case of a flat plate of reinforced concrete with its steel tie in the bottom. The steel takes tension and the concrete compression, an ancient principle. In resisting bending, tension and compression of flexure are held in equilibrium by horizontal shears. Such horizontal shear distortion would be proportional to the summation of the moments from the center toward the end. Hence the greatest horizontal shear distortion occurs at the end or adjacent to the support with the steel in the bottom. Removing the steel from the bottom to the top, anchoring it by continuity from rigidity to the support and dropping it to the bottom at mid-span, pre

sents a condition of restraint resisting negative bending at the support and resisting positive bending at the bottom at the center of the span. Now horizontal shear intensity is still proportional to the summation of the moments, but will be greatest not adjacent to the support with restrained or continuous beams or plate, but at the line of inflection where the curvature changes from convex upward to concave upward and will be zero at the support. Hence the coation of the metal and concrete is antipodal in the two cases. They constitute a different mechanism according to the simplest and most elementary mechanical principles and any court holding to the contrary is reversing fundamental laws of equilibrium for which the Federal Courts appear to possess unlimited contempt.

Again, not only did this court hold that placing the steel in the top was the plain mechanical equivalent of putting it in the bottom, but that its lateral position was immaterial, although in one case anti-clastic curvature is produced and synclastic curvature as the inherent result of its disposition and location and in the other case. court thus erroneously reversed the technical examiner of the patent office as to the difference in means which the different lateral arrangements entailed.

The

disagrees with the holding of the Supreme Court of the United States in Carnegie v. Cambria ::

"The patent is not addressed to lawyers, or even to the public generally, but the manufacturers of steel and any description which is sufficient to apprise them in the language of the art of the definite feature of the invention *** is sufficiently definite to sustain the patent."

If the Supreme Court has the right idea of the matter, the patent should be valid. if it is not understood by the lawyer and can the lawyer-judge properly interpret it unless the specialist is called in to help?

These are matters upon which the layman would like some information which would clear up the nebulous nature of the ideals of the legal fraternity regarding the best mode of procedure in such cases.

Upon this question of the meaning of the language, the Eighth C. C. A., in the case referred to in the Literary Digest, held that "in the construction of patents and in the application of the law to the facts it presents words must be given the same meaning that the patentees gave them and must be used to designate the same things they used them to designate, or nothing but confusion and mystification can result." Then after stating the correct principle the court proceeded at once to give the terms used by the patnot the meaning the patentee gave them, but entirely different meanings and involve all the mystification and confusion in their holding that they predicted would result from such procedure, and then reversed the patent office expert ten times out of ten questions considered by them.

Take another case where the patentee referred to what is in common parlance known as the mathematical flat plate. The court stubbed its toe and supposed that such a plate was naturally flat on top and bottom. What was referred to by the engineers was one which was not flat at all, but operates on the principle of the shell. Take, for instance, a slice of the baby's hollow rubber

(1) 185 U. S. 403, 46 L. Ed. 968. (2) Drum v. Turner, 219 Fed.

ball and bend it in one direction. it flattens out in the other. Bend it in both directions at the same time and the change of curvature is reduced by more than half that which would occur with one force only acting. It was this kind of bending and this kind of disposition of the steel which imitated the action of the homogenous flat plate for the first time in the history of the art in the patent which this same court in one decision first held to be an aggregation of unpatentable elements on 1894 references and then held the same litigant iater had infringed the unpatentable as embodied in a true and valid patent of the year 1902, and to cap the climax of consistency the same. jurist who held the thing unpatentable on the art of 1894 has been engaged as presiding judge of the circuit court for three and one-half years, trying to determine how much in the way of damages and profits the poor litigant is to be assessed for infringing the thing which he himself has held unpatentable. In the meantime the public at large have been blackmailed of three quarters of a million dollars for alleged royalty in the use of the impractical device which the holders of the paper patent have in the accounting frankly admitted they have never seen, used or tested, and again it was the wide commercial use of the patented thing which had never been used or tested that somehow convinced the court it was the product of the genius of the inventor. Verily when one delves into the musty volumes of the Federal Reporter in the field of scientific research he may be pardoned if he uses the expression of the editor of the Engineering News Record, that his impression of the contrarieties of our judicial decrees made him feel like "Alice in Wonderland."

Having pointed out some of the difficulties that affect our system; having agreed with Mr. Shelton that the court of patent experts objected to by President Taft is impractical, what then is the engineer's idea? Can we not learn from our former German friends to call on scientifically trained men.

in a questionnaire to determine the state of facts and then call on our excellent judges to apply the law to the actual facts presented by the case at bar. Members of the technical societies of the highest rank in the Teutonic countries donate their services as a matter of patriotic duty to the public in determining the issue of the patent causes by answering without charge, frequently making exhaustive reports in reply to these questionnaires with the result that the patent in those countries is more than the plaything of the patent pirate, and actually encourage the art by delivering a definite reward to the real inventor instead of leaving him stranded and disappointed, robbed, injured in credit and reputation by the unscrupulous attacks encouraged by the present inefficient system of patent adjudication.

The underlying difficulty with all questions of mechanics lies in the fact that natural laws are not in general apparent, but hidden. Thus, the remarkable philosopher Galileo was punished by the court because of his teaching the doctrine that the earth moved around the sun. The court believed they could see the sun revolving around the earth every twenty-four hours, and punished the presumptuous philosopher for his theory to the contrary. The inventor's experience in the present-day courts is a duplication of that of the philosopher in the dark ages.

Mechanical truth in present-day courts is tested not by mathematical rules and principles of exact science, but by the belief of the court in honesty of the witnesses.

This is the method by which criminal. cases are adjudicated, and is the only method by which such cases, questions of specific performance of contract, and similar matters of equity, can be logically determined. In the technical cause, however, the honesty of the witness does not determine mechanical truth. In fact, it is in nowise related to it. The witness may be honest, but wholly ignorant of the matter concerning which he gives testimony. How then can a non-technical judge be expected to