# Transcript of Record — United States Ex Rel. Lowry v. Allen > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0115%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1906 - **Citation:** 203 U.S. 476 ## Text TRANSCRIPT OF RECORD. | SUPREME COURT OF THE UNITED STATES. OCTOBER TERM, 1906. No. && OO. THE UNITED STATES EX REL. GEORGE A. LOWRY AND PLANTERS COMPRESS COMPANY, PLAINTIFFS IN ERROR, vs. FREDERICK I. ALLEN, COMMISSIONER OF PATENTS.’ IN ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. FILED JUNE 23, 1905, (19,813.) (19,813.) SIPREME COURT OF THE UNITED STATES OCTOBER ‘TERM, 1005. No. 31}. THE UNITED STATES EX REL. GEORGE A. LOWRY AND PLANTERS COMPRESS COMPANY, PLAINTIFFS IN ERROR, Us. FREDERICK I. ALLEN, COMMISSIONER OF PATENTS. IN ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. INDEX. Page. 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MEL ETE SEC Le Ee OPES 42 “SUPREME COURT OF THE DISTRICT OF COLUMBL, Tur UNrrep STATES OF AMERICA EX relatione George A. Lowry and Plant- ers Compress Company, Relators, UR, Freperick |, ALLEN, COMMISSIONER of Patents, Edward B. Moore, Assist- '- No. 47053. At Law. ant Commissioner of Patents, and 8. W. Stocking, J. H. Brickenstein, and Thomas G. Steward, board of examiners in chief, in’ the United States Patent Office, Respondents. Unirep States OF AMERICA, District of Columbia, ss: Be it remembered that in the Supreme Court of the District of Colum- bia, at the city of Washington, in said District, at the times hereinafter mentioned, the following papers were filed and proceedings had in the above-entitled cause, to wit: 1 Petition for writ of mandamus. Filed July 7, 1904. In the Supreme Court of the District of Columbia. Tue UNirepd STATES OF AMERICA EX RELA- | tione George A. Lowry and Planters Com- press Company, vs. FrepericK I, ALLEN, COMMISSIONER OF | y; imine Patents, Edward B. Moore, Assistant Com- “No. 47053. At Law. missioner of Patents, and 8S, W. Stocking, J. H. Brickenstein and Thomas G. Steward, board of examiners in chief, in the United States Patent Office. In the matter of the petition of George A. Lowry and Planters Com- press Company, assignee of seid George A. Lowry, praying for a writ of mandamus. And now into this honorable court, by their counsel, Oliver Mitchell and Edmund Wetmore, come George A. Lowry, of Chicago, Illinois, and Planters Compress Company, a corporation organized and existing under _— —_ 2 FREDERICK t. ALLEN VS. THE UNITED STATES. the laws of the State of Maine, and respectfully ask leave of the court t file a petition, herewith exhibited, for a writ of mandamus to Phocderieg I, Allen, Commissioner of Patents, in the United States Paton: Offer Edward B. Moore, Acting Commissioner of Patents, in the United State. Patent Office, and S, W. Stocking, J. WH. Brickenstein, and Thon. G. Steward, constituting a board of examiners in chief in the United stares Patent Office, and pray the court to direet a rule te be issued ty 2 the said parties to show cause on a day to be fixed by the court why a writ of mandamus should not issue, commanding said par ties to cause to be reinstated and to reinstate and take jurisdiction of the petitioners’ appeal, and consider and determine the same on the merits as prayed for, and the petitioners pray for such other relief as may be just, Filed July 7, 1904, *Supreme Court of che Dist. ct of Columbia, Ex parte, 47053, In the matter of the petition of George A. Lowry aad Planters Com- press Company, assignee of said George A. Lowry, praying for a writ of mandamus, To the honorable Supreme Court of the District of Columbia, The petition of George A, Lowry and Planters Compress Company, assignee of said George A. Lowry, respectfully shows: I. That the said Planters Compress Company is a corporation duly organized and existing under and by virtue of the laws of the State of Maine, and has a principal place of business at Boston, Massachusetts, and that it is the sole owner of Letters Patent of the United States, No. 661475, for Bale of Fibrous Material. II, That said letters patent were applied for by vour peti- 3 tioner, Lowry, January 29, 1897, and before issue, said applica- tion was assigned to said Planters Compress Company, and the said Letters Patent, No. 661475, for Bale of Fibrous Material were issued to your petitioner, Planters Compre: s Company. IIl. ean information and belief that thereafter an interference was declared in the United States Patent Office between said letters patent and the application of William L. Spoon, serial No, 74985, for a bale of fibrous material, to which interference your petitioner Lowry was, by the authorities of the Patent Office, made a party. IV. Upon information and belief that in accordance with the rules of practice in the Patent Office, promulgated by the honorable Commis- sioner of Patents, said Lowry, after the declaration of said interference, moved to dissolve said interference upon the several grounds set forth in Rule No, 122; that this motion was transmitted to the proper primary examiner who granted the same; that thereupon Spoon aforesaid appealed from this adverse decision to the board of examiners in chief, who affirmed the decision, from which adverse decision said Spoon appealed to the honorable Commissioner of Patents in person. | FREDERICK 1, ALLEN Vs. THE UNITED STATES, 5 V. Upon information and betief that subsequently the said Spoon petitions d the Commissioner of Patents to remand the said interference to the primary examiner for reconsideration of the question of operative- yess of the Spoon press to make the issue bale and for leave to tile affi- davit= i support of operativeness, VI. Upon information and belief that this petition was granted | sud thereafter a hearing was had and the primary examination found the Spoon press operative to make the issue bale, if the press of Lowry was operative to make the issue bale, and reversed pre- vions decisions dissolving the interference, VII. Upon information and belief that thereupon vour petitioner Lowry appealed frome this decision adverse to his motion to dissolve. the interterence, to the board of examiners in chief, as provided in section {x2 and section 4909 of the Revised Statutes of the United States; that this appeal was duly doeketed and a date set by the board of examiners in chiet for a hearing thereof, VILL. Upon information and belief that thereafter said Spoon filed a motion to dismiss said appeal; that this motion was heard, and that on the LOth day of May, 1904, the board of examiners in chief rendered a decision (a copy of which is hereto annexed and made a part hereof) in which, for the reasons therein stated, the said board of examiners in chief’ holds that it has no jurisdiction to entertain said appeal, and therefore allows the motion of Spoon to dismiss the appeal. IX. Your petitioners further show, as they are advised, that under and according to the laws of the United States governing such matters, namely, sections 475, 476, 482, 4904, and 4909 of the Revised Statutes of the United States, it was the duty of the said board of examiners in chief to entertain and decide vour petitioners’ appeal and the lawful right of your petitioners as parties toan interference to have the said appeal heard and deeided, 5 X. Upon information and belief that) subsequently to said decision of said board of examiners in chief’ your petitioner, Lowry, petitioned the honorable Commissioner of Patents to direet said hoard of examiners in chief to hear and determine said appeal of Lowry and for such other relief as to his honor might seem meet, a copy of whieh petition is hereto annexed and made a pert hereof. XI. Upon information and belief that subsequently the honorable Assistant Commissioner refused, by a decision rendered June 29, 1904, to grant said petition and declined to give your petitioners any relief, and a copy of said decision is hereunte annexed anc! made a part hereof. XII. And your petitioners further show, as they are advised, that they have exhausted all means in the Patent Office to obtain their legal right of appeal under sections 482 and 4909 of the Revised Statutes of the United States. Wherefore your petitioners pray that a writ of mandamus be granted by this honorable court commanding Frederick I. Adlen, Commissioner of Patents, Edward B. Moore, Assistant Commissioner of Patents, and 8. W. Stocking, J. H. Brickenstein, and Thomas G, Steward, constituting the board of examiners in chief, to cause to be reinstated and to reinstate and take jurisdiction of your petitioners’ said appeal and to entertain and consider the merits thereof and decide the same upon the merits. 4 FREDERICK bt. ALLEN Vs. THE UNITED STATES. And your petitioners pray for such other relief as to this tionorable court may seem meet and proper. PLANTERS Compress Company, By Gronce T. PRanets, P 6 And your petitioners will ever pray, ete. Second Views Prosi! vf, Oniver Mrrcenenr, Epvcuxp Werwone, Counsel for Petitioner, George A. Lowrn, ; A.V. CusuM an, Solicitor, } Stave OF MASSACHUSETTS, | pap ~o ay {7OD3, . Suffolk, SS, ) 4 George A. Lowry, being duly sworn, says that he is one of the peti- tioners above named, that he has read the foregoing petition and knows 3 the contents thereof, and that the same is trae of his own Knowledge, except these matters therein stated to be on information and belief, and 4 ° ° ’ as to those matters he believes it to be true, Betore me, [SEAL |} ‘ Evererr EB, RENT, : Notavy Public, : Boston, July 2, 1904. SPATE OF MASSACHUSETTS, Suffolk, sx. George T. Francis, ef lawful age, being duly sworn, says that ne is the second vice-president of the Planters Compress Company, the poti- tioner above named, that he has read the foregoing petition and knows the contents thereof, and that the same is true of bis own knowledge, except those matters therein stated to be on information and belief, and as to those matters he believes it to be true, Before me, [sEAL. | Evererr EK, KEN, Notary Public. Boston, July 2, 1904. i STATE OF MASSACHUSETTS, County of Suffotk, sx: Oliver Mitchell, being duly sworn, says that he is an attorney and counsellor at law and is one of the solicitors for the Planters Conypress Company and George A. Lowry, petitioners above named, and that he has read the foregoing petition and knows the contents thereof, and that the matters of fact therein alleged are true of his own knowledge. Before me, Ronerr CusuMan, [SEAL. | Notary Public. } FREDERICK 1, ALLEN Vs. THE UNITED STATES. 9 P Exutmir A, Filed July 7, 1904, 47053, No, 25704, U.S, Patent Office, May 10, 1904. Before the examiners in chief, on appeal, In the matter of the interference between the patent to George A. Lowry, No, 661475, granted November 6, 1900, on an application filed January 29, 1897, and the application of William L,. Spoon, filed Sep- tember 10, L901, division of application filed October 24, 1896. — Inter- ference No. 21517. Improvements in Bales of Fibrous Material. Mr. Oliver Ro Mitchell for Lowry. Mr. Cyrus Kehr for Spoon, Motion to dismiss appear, This is a motion to dismiss an appeal taken by Lowry from a decision of the primary examiner on a motion to dissolve, The history of the proceedings in this case, briefly stated, is as follows : Lowry moved to dissolve the interference on the ground that the appli- cation of Spoon failed to diselose an apparatus operative to produce such a bale as ealled for by the issue of the interference. The primary examiner decided that Spoon’s device was inop- erative. 4 On appeal the examiners in chief affirmed his decision. Thereupon Spoon took an appeal to the Commissioner, by whom the case was remanded to the primary examiner for further considera- tion, Before the primary examiner affidavits were filed and the examiner ame to the conclusion that Spoon's application did diselose an operative device, Whereupon Lowry appeals to the examiners in chief from this decision of the primary examiner. Rule 124 provides that “From a decision of the primary examiner afirming the patentability of the claim or the applicant’s right to make the same no appeal can be taken.” On the face of the appeal it is apparent that under the rule we have no jurisdiction. On behalf of Lowry, however, it is contended that the rule is invalid and void because inconsistent with law. The section of the statutes relating to interference proceedings, and the only section which relates thereto except that providing for an appeal from the decision of the Commissioner to the Court of Appeals of the District of Columbia, is sec, 4904. As to the conduct of an interference proceeding up to the determina- tion of the question of priority of invention by the “ primary examiner,” there is no more therein than merely a direction to notify the parties and direct the primary examiner to proceed to determine the question of pri- ority of invention. There being nothing in the Statutes to regn- 10 late the proceedings so authorized, it is consistent with the law thet the proceedings shall be regulated by rules established under 6 FREDERICK I, ALLEN VS. THE UNITED STATES, the Revised Statutes, sec, 483, such rules having been provided. They include provisions for conducting an interference proceeding to deter mine the merits—that is, the question of priority of invention, They also include rules for determining the validity of adverse decisions made in interference proceedings on questions not involving the merits. The raising of other questions than that of priority of invention is, under those rules, by motions, and a rule provides for appeals from such adverse decisions on motions as follows: “124, Appeal may be taken directly to the Commissioner — from decisions of the primary examiner on all motions except the following: (1) On motions to dissolve which deny the patentability of applicant's claim ; (2) on motions to dissolve which deny the right of an applicant to make the claim; (3) on motions involving the merits of the invention, Decisions on these motions, when appealable, go to the examiners in chief in the first mentioned, and upon such appeals the questions shall be heard inter partes. “From a decision of the primary examiner affirming the patentability of the claim or the applicant’s right to make the same no appeal can be taken.” In the case before us the appeal is taken by Lowry from the decision of the primary examiner that the application of Spoon discloses an apparatus practically operative to produce the bale called for by the issue. The question of operativeness, whether raised by a motion in inter- ference or ex parte proceedings, is essentially whether an applicant has furnished sufficient basis for the grant of a patent under sec. 4886. The only real parties to the proceeding are the Patent Office, acting 11 in the interest of the public, and the applicant whose application is in question. In consonance with this idea, for many years the applicant’s contestant was not even allowed to appear at the hearing of an appeal from the adverse decision of the principal examiner upon ques- tions of patentability or right to make the claim. This practice was changed by decision of the Commissioner in Westinghouse v. Duncan, C. R. 1893, p. 12; 66 O.G., 1005, and the rule wes subsequently amended te conform to this decision. Even now the rule provides only that the hearing shall be inter partes. The question of operativeness is the same whether it oceurs in the ex parte or the inter partes consideration of an application. The statute, as we understand it, expressly limits the jurisdiction of the examiners in chief to revising and determining upon the validity of adverse decisions of the principal examiner, and from his favorable decision, whether made in ex parte or interference cases, we have no jurisdiction. On behalf of Lowry, however, it is urged that the present sec. 4909 means that “every party to an interference may appeal from the decision of the principal examiner * * * to the board of examiners in chief.” The section reads as follows: “Every applicant for a patent or for the reissue of a patent, any of the claims of which have been twice rejected, and every party to an interfer- ence, may appeal from the decision of the primary examiner, or of the examiner in charge of interferences in such case, to the board of examiners in chief; having once paid the fee for such appeal.” I. ALLEN VS. THE UNITED STATES, 7 FREDERICK The construction which counsel for Lowry attempts to put upon ]2 this section of the statutes seems to us to be in direct contradie- tion of the Revised Statutes, see. 482, which defines the duties of the examiners in chief. We fail to find in the history of this section any indication of an intent by Congress to change the powers of this tribunsal. By the act of 1861 it was enacted that there should be appointed by the President three examiners in chief, whose duty it shall be, on the written petition of an applicant, to revise and determine upon the valid- ity of decisions made by an examiner when adverse to the grant of let- ters patent, and also to revise and determine in like manner upon the validity of decisions of examiners in interference cases. At that time there was no special examiner of interferences, but each examiner decided such interferences as included applications which had been assigned to him for examination. This act was followed by the Patent act of 1870. This act provided that there should be in the Patent Office three examiners in chief (sec, 476), whose duties were defined by see. 482 to be on “the written peti- tion of the appellant to revise and determine upon the validity of the adverse decisions of examiners upon applications for patents, and for reissues of patents, and in interference cases,” The substitution of the term “appellant” in place of “applicant” was evidently made for the sake of accuracy. In ex parte cases rejected for failure to comply with the requirements of sees. 4886 and 4916 13 the appellant was always an applicant, but in interference USES, where one of the parties might have a patent, the appellant might be a patentee and not an applicant. The sections of the statutes which provide for appeals to the exami- ners in chief are sees. 4904 and 4909, Section 4904 provides as follows: “Whenever an application is made for a patent which, in the opinion of the Commissioner, would interfere with any pending application, or with any unexpired patent, he shall give notice thereof to the applicants, or applicant and patentee, as the case may be, and shall direct the primary examiner to proceed to determine the question of priority of invention, And the Commissioner may issue a patent te the party who isadjudged to be the prior inventor, unless the adverse party appeals from the decision of the primary examiner, or of the board of examiners in chief, as the case may be, within such time, not less than twenty days, as the Commissioner shall prescribe.” The “primary examiner” in this section is the “examiner in charge of interferences” referred to in sec. 440 and see. 4909, Section 4909 has been quoted above. Under sec, 4909 the decision of the primary examiner is the decision of the question of priority, and that is the only matter upon which appeal can be taken under this section of the Statutes, See Westinghouse v. Dunean, C, D. 1894, p. 170; 66 O. G., 1009, and Painter v. Hall, 83 0. G., 1803; C. D. 1898, p. 91. This whole matter is discussed in this last decision, to which attention is particularly called, and in which it is stated : “The motion to dissolve on the ground of nonpatentability or that 23388—05——2 8 FREDERICK I. ALLEN VS. THE UNITED STATES. one of the parties has no right to make the claim is heard inter partes by the primary examiner as a matter of office policy in order that the facts and reasons which, in the opinion of the moving party, negative the patentability of the claim or show that his oppo ent is pot 14 entitled to make the claim may be clearly presented; hut. the office does not and can not recognize the moving party as a party in interest entitled to contest the patentability of another's claims. Hp has no right to appeal from a decision denying his motion. His position is not unlike that of amicus curize, the same reasons which justify the rule which refuses the right of appeal from the decision of the primary examiner affirming patentability or the right of the respective parties to make the claim justify the office in refusing to permit the appeal taken by the party whose claims are affected to be made a contest inter partes before the appellate tribunal.” There are, of course, innumerable decisions denying the right of appeal from a favorable decision of the examiner. See, for example, White y, Thomson, 101 O. G., 2825; Fuller v. Brush, 16 O. G., 1188; Faure y, Bradley et al., 40 O. G., 243; Faure v. Bradley et al., 44 O. G., 945; ex parte Ferguson, 56 O. G., 1334; Kane v. Brill & Adams, 84 O. (i, 1142; Miller vy. Kelley, 84 O. G., 1144; Holt v. Ingersoll, 84 0. G, 1873; Stupakoff v. Johnson, 84 O. G., 982; Edison vy. Stanley, O. D, 1891, 173; Sharer v. McHenry, 91 O. G., 1034; Meyer v. Sarfert, 9% O. G., 1037; Ross v. Scott, 96 O. G., 842; Niedermeyer v. Walton, 9% O. G., 1707. As we understand the statute, it means that the examiners in cinet are called upon (1) to determine upon the validity of adverse decisions of 4 cian examiner who has twice rejected the claims of an application for patent; (2) adverse decisions of a principal examiner who has 15 twice rejected the ciaims of an application for reissue of a patent (see. 4909); and (3) decisions of the examiner in charge of inter- ferences upon the question of priority (secs. 4909 and 4909). If there had been any intent on the part of Congress to provide for appeals from favorable decisions of examiners, there would have been some express provision of the statutes to that end. There is no such provision; on the contrary, sec. 482 limits the jurisdiction of the examiners in chief to determining upon the validity of adverse decisions of examiners of all kinds. Sec. 4909 provides for appeals from the primary examiner only when the claims have been rejected. Sees. 4910 and 4911, and sec. 9 of the act of February 9, 1893, pro- vide for appeals to various tribunals. If Lowry’s contention is correct, then every party to an interference may appeal from any decision of a primary examiner to the Court of Appeals. The whole theory of action of the Patent Office under the clause of Rule 124, which provides for no appeal from a favorable decision of the examiners on a question affecting the rights of an applicant to make the claims and the patentability of the claims, and such questions as aris under secs, 4886 and 4916, is that in the ordinary course of proceedure, if the primary examiner decides that the claims are allowable, there is no provision for a review of his favorable decision. FREDERICK 1. ALLEN VS, THE UNITED STATES, y It has been regarded as the policy of the patent statutes to 16 grant a patent wherever any tribunal of the Patent Office found the claims of an application to be allowable, It seems to us incredible that if Congress had intended that this long-established policy y should be changed merely because an applicant became involved in an interference the statutes should not have e xpressly provided for such a contingenc’ v. Our conclusion is that Rale 124 is valid and in accord with the law, and accordingly we hold that we have no jurisdiction over the appeal taken by Lowry from the decision of the primary examiner, od the motion made by a to dismiss the appeal of Lowry is granted and the appeal is accoré ingly dismissed, J. H. BrickeNnsTeIn, S. W. Srocki na, Examiners in Chief. Iam of the opinion that the appeal should be dismissed for lack of jurisdiction under the rules, T. G, STEWARD, Kraminer in Chief, 17 Exuipir B. Filed July 7, 1904. In tHe Unirep States PATENT OFFice, George A, Lowry } om >47053. Interference No, 25704. Winiiam L, Spoon. Petition to the Hon, Commissioner of Patents, Your petitioner, George A. Lowry, one of the parties to the above- entitled interference, respectfully represents that the above-entitled inter- ference was declared Dec. 17, 1901; that upon motion by Lowry to dissolve, duly made and transmitted, the motion was allowed by the primary examiner, and upon Spoon ’s appeal to the examiners in chief from this decision the decision was affirmed, and from the decision of the examiners in chief Spoon appealed to the Hon. Commissioner. That pending this appeal the C ommissioner, upon Spoon’s petition, remanded the interference to the primary examiner for further consideration of the question of operativeness; that thereafter the primary examiner denied the motion to dissolve; that upon a petition of Lowry to transmit the interference to the board of examiners in chief for review of their previous decision, the Hon, Commissioner denied the petition and dismissed Spoon’s preceeding appeal to the Commissioner; that subsequently Lowry moved for rehearing; that this motion was allowed; that rehearing was 1s was had, and on the 21st day of March, 1904, the decision of the Commissioner of rehearing affirming his previous decision; that on the 8th day of April, Lowry appe: aled from the decision of the primary examiner to the board of examiners in chief under sections 482 of the 10 FREDERICK I. ALLEN VS. THE UNITED STATES. act of 1870 and under section 4909 of the Rey. Statutes of the United States; that this appeal was docketed by the board of examiners in chief and hearing set thereon for May 25, 1904; on April 20, 1904, Spoon moved to dismiss Lowry’s appeal and that, May 10, 1904, the board of examiners in chief allowed the motion of Spoon. Wherefore your petitioner prays that your honor will direct said board to perform the duty laid upon them by law, and for such other and further relief as to your honor may seem meet. GEORGE A. Lowry, By his attorney, OLIVER Mrrciuen., 19 Exuipir C, Filed July 7, 1904. Intf. No. 21517. N. L. M May 20, 1904. (IE. E.G.) Unrrep Sratres Patent OFFICE, Lowry v. Spoon. 47053, Bale of Fibrous Material, PETITION, Patent granted George A. Lowry November 6, 1900, No. 661475. Application of William L. Spoon filed September 10, 1901, No. 74985, Division of application No. 609902, filed October 24, 1896, Mr. Oliver R. Mitchell, for Lowry. Mr. Cyrus Kehr, for Spoon. This is a petition by Lowry, asking in effect that the examiners in chief be directed to hear and determine his appeal from the primary examiner’s decision denying his motion to dissolve the above-entitled interference, The motion was made on the ground that Spoon has no right to make the claim of the issue, since his device is inoperative. The examinei’s | decision was in favor of Spoon’s right to make the claim, and — 20 under the express provisions of rule 124 no appeal lies from his | decision. Lowry recognizes this, but patirede. that the rule is inconsistent with the statute and is invalid. He calls attention to the fact that section 4909, R.S., is broad in its terms, saying “‘every party to an interference may appeal,” and argues therefrom that he is entitled” to appeal from any decision in an interference with which he is not satis- | fied. A similar contention was made before the Court of Appeals in Westinghouse v. Duncan, 66 O. G., 1009, and the court expressly ruled to the contrary, saying: “Tn our opinion it was not the intention of Congress in the employ- ” ment of the general terms of the statute, to grant the right of appeal to this court from mere interlocutory or preliminary orders or rulings in interference proceedings.” The court has further ruled that decisions upon motions to dissolve constitute interlocutory or preliminary orders, and in the recent case of FREDERICK I, ALLEN V8. THE UNITED STATES. ll Mark v. Greenawalt, decided May 11, 1904, it dismissed for lack of jurisdiction an appeal from a decision on a motion holding that one of the sarties had no right to make the claim of the issue. The rule prohibiting an appeal from a decision upon a’ motion holding that a party has the right to make the claim of the issue is in accordance with the practice which has prevailed in this office for many years and has the support of all decisions of the courts which have been rendered on the subject. There seems to be no reason for regarding it as incon- sistent with the statute. It seems very clear that the decision in this 21 case is not a final adverse decision, since it is not a ruling that Lowry is not entitled to his patent. That is a matter which may be determined in the further proceedings, and therefore it is clear that the decision relates to a mere interlocutory matter. The petition is denied, KE. B. Moore, Acting Commissioner 99 Rule to show cause. Filed, July 7, 1904. In the Supreme Court of the District of Columbia. Tue Unrrep Srates OF AMERICA EX RELA- ) tione George A. Lowry, et al. UKX, Freperrck I. ALLEN, COMMISSIONER OF Pat- ! ,- ane ee ents; Edward B. Moore, Assistant Commis- No. 47053, At law. sioner of Patents; S. W. Stocking, J. H. Brickenstein, Thomas G. Steward, board of examiners in chief. On reading the petition for the writ of mandamus in this cause and upon considering the same it is this 7th day of July, 1904, ordered: That the defendants show cause herein on the 18th day of July, 1904, at 10 o’clock a, m., before this court why the said writ of mandamus should not issue as prayed, Provided that a copy of this order and petition be served on the defendants on or before the 9th day of July, 1904, ASHLEY M, GovuLp, Associate Sustice. Marshal's return, Served copy of within rule and copy of the petition in this cause on defendants as follows: 23 Frederick I, Allen, Commissioner of Patents, by service on Edward B. Moore, Acting Commissioner; Edward B. Moore, Assistant Commissioner of Patents; 8. W. Stocking and J. H. Brick- enstein, of the board of examiners in chief, July 7, 1904; on defendant Thomas G. Steward, of said board. , July 8, 1904. : AULICK PALMER, Marshal. B. 12 FREDERICK I, ALLEN V8. THE UNITED STATES, Return of respondent Edward B, Moore. Filed July 14, 1904, In the Supreme Court of the Distriet of Columbia. Tue Unirep States or AMERICA EX RELA- tione George A, Lowry and Planters’ Com- press Company vA, FrepericK [, ALLEN, COMMISSIONER OF Pat- ents; Edward B. Moore, Assistant Commis- sioner of Patents, and S, W. Stocking, J. H. Brickenstein, and Thomas G, Steward, board of examiners in chief, in the United States Patent Office. To the honorable the Justices of the Supreme Court of the District of Columbia: The return of the respondent Edward B, Moore, Assistant 24 Commissioner of Patents, to the rule to show cause issued herein upon the 7th day of July, 1904, The said Edward B. Moore, Assistant Commissioner of Patents, comes, and for answer to the order to show cause why the said writ of mandamus should not issue says, upon information and belief: 1, The respondent he an the allegations of the first paragraph of the petition, 2. The respondent admits the allegations of the second paragraph of the petition. 3. The respondent admits the allegations of the third paragraph of the petition, 4. The respondent admits the allegations of the fourth paragraph of the petition. 5. The respondent admits the allegations of the fifth paragraph of the petition, 6. The respondent admits the allegations of the sixth paragraph of the petition, 7. The respondent admits that Lowry filed an appeal to the examiners in chief from the decision of the primary examiner refusing to dissolve the interference, but denies that such appeal was provided for or author ized by sections 482 and 4909 of the Revised Statutes, or by any other section of the statutes, 8. The respondent admits the allegations of the eighth paragraph of the petition. %. The respondent denies that it was the duty of the examiners 2 in chief to entertain and decide the petitioners’ appeal and denies that the petitioners were entitled to have the appeal heard and decided, He avers that the primary examiner’s decision was not the rejection of a claim ora final adverse decision in the interference, but was a mere ruling upon an interlocutory motion and was not appeal- able. He further avers that the decision was not adverse to Lowry’s claimed rights as the patentee, since that is the very matter to be deter- mined in the interference proceeding which the primary examiner ref 2 No. 47053. At law, FREDERICK I. ALLEN VS. THE UNITED STATES. 15 to dissolve. Lowry will have the right of appeal, if at all, only in case the final decision in the interference is adverse to him. 10. The respondent admits the allegations of the tenth paragraph of the petition. ; 11. The respondents admits the allegations of the eleventh paragraph of the petition. 12. The respondent admits that the petitioners have exhausted all means in the Patent Office to obtain the right of appeal from the inter- jocutory decision of the primary examiner at this time and avers that the right of appeal will not exist unless and until a final adverse decision is rendered in the interference, The respondent further says that by reason of the facts hereinbefore alleged he should be dismissed with his reasonable costs. { Epwarp B. Moore. Joux M. Corr, Attorney. 26 District OF COLUMBIA, ss: On this day personally appeared before me, a notary public in and for the said District of Columbia, Edward B. Moore, and made oath that he is the respondent in the above-entitled cause; that he has read the foregoing answer by him subscribed and knows the contents thereof; that the same is true of his own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. Given under my hand this 14th day of July, 1904. [SEAL | A. M. Busy, Notary Public for the District of Columbia, Replication. Filed July 26, 1904, In the Supreme Court of the District of Columbia. Unirep STATES EX REL. George A. Lowry, and Planters Compress Company, ve, Freperick I. ALLEN, Commer, or Pats., Ep- > No, 47053. At Law. ward B. Moore, Asst. Comr. of Patents, 8. W. Stocking, J. H. Brickenstein, Thomas G. Stew- ard, board of exrs, in ehf. To the Honorable Justices of the Supreme Court of the District of Columbia, 27 Replication of the relators to the answer of the respondents herein, filed upon the 14th day of July, 1904, Now, into this honorable court comes the relators by counsel and, sav- ing unto themselves all and every right of exception to the apparent insufficiencies of the answer of the respondents by way of replication to such answer, say: 1, The relators except to the allegations of the respondents in para- graph 9 of ‘said return “that the primary examiner’s psec was not a 14 FREDERICK I, ALLEN VS. THE UNITED STATES, 7’ rejection of a claim or a final adverse decision in the interfercnes, byt Was a mere ruling upon an interlocuto,, motion” and say that such alle. gations are wholly immaterial and are not in issue in’ this ease, tip the reason that neither section 482 nor 4909 of the Revised Statutes of the United States nor any other statute requires that a decision to be Appeal. able shall be “the rejection of a claim,” nor that it shall be a “tinal” decision in an interference; nor dees any rule of law or any statute of the United States provide that a ruling, “mere” or otherwise, tipon an interlocutory motion is not or shall not be appealable, provided that the decision affects the substantial rights of the parties or is not otherwise reviewable, and the allegations of the respondents are therefore insufti- cient in law to be replied unto; and the relators aver that the action of the primary examiner was a decision, and that the decision and denial of the primary examiner touched and affected a substantial right, and that unless reviewed by the respondents the board of examiners in 28 chief, as required by the relators, no review can hereafter be had ; and the relators aver that on othe interlocutory questions raised by motions to dissolve under rule 122 the Patent Office allows thre right of appeal to both parties, namely, on motions to dissolve on the ground that no interference in fact exists, and upon motions to dissolve for irregue larity in declaring the interference, a also upon motions to shift the burden of proof, and all other interlocutory motions. 2. Further replying, the relators deny the allegation contained jy paragraph 9 in said reply, “that the decision was not adverse to Lowry’s claimed rights as a patentee,” and deny the allegation that “that is the very matter to.be determined in the interference proceeding which the yvrimary examiner refused to dissolve,” and allege that the first and Secdimeasl question to be determined in any interference is that the parties alleged to interfere have the same invention, and that such a matter is not “the very matter to be determined in the interference pro- ceedings which the primary examiner refused to dissolve,” but that the only matter to be determined in the interference proceedings, if they be not dissolved, is the right of Spoon to a patent, since Lowry has already a patent, and your relators aver that a decision that an applicant has a right to claim your relator’s patented invention is a decision adverse to your relators and affects his substantial interest; and your relators aver that unless the examiner’s decision upon this question is reviewed at this stage of the proceedings, no review of the question of invention involved will be possible at any later stage. 29 And your relators aver that it is wholly immaterial whether or hot the primary examiner’s decision was an interlocutory matter, and whether or not such matters are not at common law appealable, since the relators’ right is based upon statute, and whether that statute be declaratory or amendatory of the common law is immaterial. Wherefore your relators do move the court for judgment and for the issuance of a peremptory writ of mandamus against the respondents not- withstanding the return of the respondents herein. Epmunp Wermore, OLIVER MITrcHeELt, A. V. CusuMan, Attorneys for Relators. FREDERICK I, ALLEN VS, THE UNITED STATES, 15 In the Supreme Court of the District of Columbia. Unrrep STATES EX REL. George A, Lowry aud Planters Compress Company vr, FrevertcK 1. ALLEN, Commer. or Pats., Ep- | No. 47,053. At Law, ward B. Moore, Asst, Commr, of Patents, 8.W, Stocking, J. H. Brickenstein, Thomas G. Steward, board of exrs. in elif. Crry oF WASHINGTON, District of Columbia, sx: A. V. Cushman, being duly sworn, deposes and says that he is of mature age and a resident of Washington, Distriet of Columbia. 30 That he is of counsel for George A. Lowry et al. in the matter of the above-entitled case. That he has read the replication of the said George A. Lowry et al. to the answer of the respondents herein. That the pleading as to matters of faet is of his own knowledge true, except as to matters therein stated upon information and belief, and as to these matters he believes the said replication to be true. Further deponent sayeth not. A. V. CusuMan, Sworn to and subscribed before me this 26th day of July, 1904, [SEAL] H. J. SWRENEY, Notary Public, D.C. 31 Leave to amend petition, Filed December 29, 1904, Supreme Court of the Distriet of Columbia, Uxirep STATES OF AMERICA, EX RELATIONE, George A, Lowry, and Planters Compress Company, vs, Freperick I, ALLEN, COMMISSIONER OF Pat- - No. 47053, At law. ents, Edward B. Moore, Assistant Commis- sioner of Patents, S. W. Stocking, J. H. Brick- enstein, and Thomas G. Steward, board of examiners in chief in U.S. Patent Office. And now into this honorable court, by their counsel, comes George A. Lowry, of Chicago, Tlinois, and Planters Compress Company, a corpo- ration organized and existing under the laws of the State of Maine, and pray leave of the court to amend their petition herein as follows, the amendments being agreed to by counsel for the respondents : Ist. In the second line of the 11th paragraph of said petition, after the word “ Honorable” insert “ Acting.’ 16 PREDERICK {. ALLEN VS. THE UNITED STATES, a 2nd. By inserting after paragraph XI the following: X Ia, Upon information and belief, that subsequently to said ducision of said board of examiners in chief, and subsequently to said decision of said honorable Acting Commissioner, your petitioner, Lowry, 32 — the honorable Commissioner of Patents t+ direct said ward of examiners in chief to hear and determine said appeal of Lowry, and for such other relief as to his honor — seCH tert, a certified copy of which said petition is hereto annexed and made o pert hereof, ax Penibit 0d X1b. Upon information and belief, that subsequently, the honorable Commissioner refused, by a decision rendered December 6, 1004, to rant said petition and declined to give your petitioner any relief, a corti- leo; v of which said decision is hereunto annexed and made o part hereof, as Exhibit D. H. A. Crstmas, Solicitor for Pelition: Se Onivern Mrrowens., Epvuuxp Wervore. Counael, The respondents herein consent to the aforesaid amendments, Joux M. Corr, Counsel for Reapondents, 33 Exuimr ©, Usirep Srates or AMERICA, DEPARTMENT OF THE INTERIOR, PATENT OFFICE, To all persons to whom these presenta shall come, grecing: This is to certifiy that the annexed is a true copy from the records of this office of the petition of George A. Lowry, filed November 29, 1004, in the matter of— Interference, Number 21517, Lowry ex, Spoon, Subject-matter: Bale of Fibrous Material, In testimony whereof, 1 have hereunto set my hand and caused the seal of the Patent Office to be affixed at the city of Washington, this 20th day of December, in the year of our Lord, one thousand nine hun- dred and four and of the Independence of the United States of America the one hundred and twenty-ninth, [SRAL. | F. 1. ALLEN, Commissioner of Patents, PREVERICK 1, ALLEN V8. THE UNITED STATES. | “4 Intf. No, 21517, paper No. 90, Ix ror Usrrep Stares Parent Orriecer. Ix ve Isrereeeencr Lowry } . No, 21517. Spoos, Bane or Finrowe Marentar. } Before the honorable Commissioner of Patents. Now comes George A. Low ry, by counsel, and respeetfally represents ante vour honor; That on or about the Sth day of Feb,, 1902, he filed a motion to dis- eolve the abowe-entitled interference. That on er about the 23rd day of May, 1902, the primary examiner rendered a decision granting said motion to dissolve the interference. That on or about the I4th day of June, 1902, Spoon, the opposing rty in the interference, appealed to the board of examiners in chief rom the decision of the primary examiner granting Lanwry’s motion to dissolve. That on or about the 15th of October, the board of examiner’ in chief rendered a decision affirming the primary examiner's decision granting Lowry’s motion to dissolve. That on or about the 21st day of November, 1902, Spoon filed a peti- tion asking your honor to remand the interference to the primary 3 examines to rehear Lowry’s motion to dissolve and pte! new evidence on the question of the operativeness of his (Spoon’s) machine to make the bale of the interference issue, That on or about the 29th day of November, 1002, vour honor granted Spoon’s petition to remand, That on or about the 27th day of July, 1905, the acting primary exam iner, on rehearing, denied Lowry’s motion to dissolve, overruling the decisions aforesaid of the primary examiner and the bowl of ocaminer in chief granting Lowry’s said motion to dissel we That thereafter the said interference was before vou pat tions, appeals, and motions, filed on behalf of beth parties y out of the action of the acting primary examine g | said motion to dissolve. That on or about the 8th day of April, 1904, sed i properly and lawfully do so, he (Lowery) filed an app. es , vimary examiner’s decision denying his motion t ‘ ying ence to the board of examiners in chief, in accordance 482 of the act of 1870, and sect, 4900 of the Kew. She i. cases made and provided, That on or about the 19th day of April, 1904 a motion ty dete. Lowry’s aforesaid lawful appeal to the board of examiner ta choc we filed by Spoon, the opposing party in the above entitled raterterene: That on or about the 10th day of May, 1004, the said board of exam iners in chief did dismiss Lowry’s appeal, aforesaid, notwithstanding his lawful right to have such appeal entertained, heard, and decided upon the merits, 36 That on or about the 12th day of May, 1904, he (Lowry did appeal to the honorable Acting Commissioner of Patents asking See 5 MA 18 FREDERICK 1, ALLEN VS, THE UNITED STATES, that the Acting Commissioner direct the board of examiners in chict to entertain, hear, and decide the aforesaid lawful appeal of Lowry, rong. fully dismissed by them, and to grant such other relief as seemed proper, That on or about the 29th day or dune, 1904, the honorable Acting Commissioner rendered a decision refusing the relief praved for and refusing to direct the board of examiners in chief to entertain, hear, and decide Lowry’s lawful appeal to them, Wherefore Lowry “0 te vour honer in person, wd prays thot a review of the decisions below denying Lowry his lawful rights be made by vour honor, that the board of examiners in chief be directed to enter tain, hear, and decide Lowry’s ap wal aforesaid in conformity with the law in such cases made and Ae 9 and for such other relief as may seem proper to your honor, Respectfully, Grorak A, Lowry, By Oniver Mrrenens., Attorney, Novemwner 29, 1904, 37 In re Tntf No, 21517, Lowry vs, Spoon, Bale of Fibrous Material. Affidavit of service, Crry or WaAsHINGTON, District of Columbia: A. V. Cushman, being first duly sworn, deposes and says that he is of lawful age and a renidient of the city of Washington, in the District of Columbia; that he has this day made service of the proceeding on behalf of George A, Lowry, in the above-entitled interference upon William L, Spoon, the opposing party, by forwarding to Cyrus Kehr, Empire Bldg., Knoxville, Tenn., attorney of record for Spoon, by registered mail, post- age prepaid, a true and signed copy of the prayers of Lowry to the Com- missioner of Patents filed herewith, and in support of the averments in this affidavit he has attached hereunto the registry receipt from the receiving office at Washington, D.C, A. V. Cusuman, Subscribed and sworn to before me this 29th day of November, 1904, [NOTARIAL SEAL] . A. M. Busy, Notary Public for A Cc 38 U.S. P.O. vegistry receipt, Letter parcel No, 32647, P. O., Washington, D. C., Station G, Received for, registration 11729, 1904, from A, V. Cushman, Addressed to Cyrus Kehr, Knoxville, Tenn, ——— class postage prepaid, Postmaster, per R. H, FREDERICK 1, ALLEN Vs. THE UNITED STATES, 19 39 Exuiner D, United States of Amerie, PEPARTMENT OF THE INTERIOR, PATENT OFFICE, To oll persons to whom these presents shall come, greeting: This is to certifV that the annexed is a true copy from the records of this office of the decision of the Commissioner, dated December 6, 1904, in the matter of—Interference, Namber 21517. Lowry vs. Spoon, Subject-matter, “tale of Fibrous Material, In testimony whereof T have hereunto set my hand and caused the wal of the Patent Office to be affixed at the city of Washington, this th day of December, in the year of our Lord one thousand nine hun- dred and four, and of the Independence of the United States of America the one hundred and twenty-ninth, PsBaL.] F. 1. ALLEN, Commissioner of Patents, 40 Nov. 16, 1904. No, 21517. M. H. Intf. No, 21517, Paper No, 92. Commr’s decision, Recorded, vol. 81 page 264, United States Patent Office, Lowry ¢, Spoon, Bale of fibrous material. Petition, Patent granted George A, Lowry November 6, 1900, No, 661475, Application of William L, Spoon filed September 10, 1901, No. 74985. Mr, Oliver R. Mitchell and Mr, A. V. Cushman for Lowry, Mr. Cyrus Kehr for Spoon, This is a petition by Lowry that the examiners in chief be instructed to hear and determine on its merits his appeal from the decision of the wimary examiner denving his motion to dissolve the above-entitled interference, The motion for dissolution was made on the ground that Spoon’s appli- cation furnished no proper basis for the claims, in that his device as dis- closed was inoperative, The examiner decided that Spoon’s device was not inoperative as described in his application, and that therefore 41 there was no bar against the allowance of his patent independent of such bar as might be shown by the evidence oalinend in the interference. His judgment therefore was that the interference should not be dissolved, but should proceed so that the rival claims of the parties could be determined. Under the express provisions of Rule 124 there is no appeal to the examiners in chief from such decision rendered on an interlocutory motion, It is believed that there is nothing ip that rule inconsistent with law, and that therefore it has the force of law. The right of appeal in interferences given in general terms in the statute is a very different Y se psec INH emus — _ ee ee 20 FREDERICK I, ALLEN VS. THE UNITED STATES. thing from the right of appeal on all motions in the interference. Ty permit appeals on motions would multiply litigation and extend the pro. ceedings in interferences beyond all reasonable limits. It would work great hardship to parties. The appellate tribunals of this office are no more required to give cases piecemeal consideration than are the appel- late courts. The whole case should be ready for appeal when the appeal provided for by the statute is taken. There seems to be no reason what- ever for regarding the statute as having a different meaning. Similar statutes relating to appeals in the courts are universally so construed, and there seems to be no good reason for applying a different rule of construc. tion here. There are the same objections to the piecemeal consideration of cases here as in the courts, and there seems to be no good reason for concluding that Congress intended to impose that burden upon this office and upon applicants for patents which it does not impose upon the courts and litigants there. There is nothing in the wording of the statute which seems to warrant the conclusion, and, on the contrary, the provision 42 for an appeal in these very cases to the Court of Appeals would seem to show conclusively that the same rule was intended to apply as in the courts. The wording of the statute providing for appeal to the Court of Appeals is almost identical in terms with that providing for the preceding appeals in this office, and that court has expressly decided that decisions on motions like that made in this case are not appealable to it. It is to be particularly noted that there has been no decision as to the rival claims of the parties to this interference. It has not been decided which party is entitled to the patent. If it should at any time be decided that Spoon is entitled to the patent, Lowry will have the right of appeal, but until such final decision is rendered the statute gives him no right of appeal. It would seem upon general principles of law that Lowry could then present for determination by his appeal any question which in his opinion vitally affects the question which party is entitled to the patent. The . only ground upon which he can reasonably claim the right of appeal on this motion is that the question vitally affects his claimed right to a patent, and if it does that, he can raise it at final hearing and contest it before the various appellate tribunals, including the Court of Appeals. The refusal to permit the present appeal on motion is therefore not a denial of an opportunity to have the matter reviewed by the several appellate tribunals mentioned in the statute. 43 The suggestion by Lowry that the tribunals of this office may not after final hearing regard the question now raised as vital, and may not give it weight in deciding his right to a patent, surely does not furnish good reason for a consideration of it by the several appellate tribunals in advance of a final decision. Lowry will-have cause for complaint when the examiners in chief refuse to consider the matter on .appeal from the final decision, if they do refuse, and he may then have their decision reviewed by the appellate tribunals, including the Court of Appeals, and may allege as error the failure to give proper weight to the question raised by this motion. If error shall be made by the tribunals of this office, it is to be presumed that the Court of Appeals will set it right. Lowry is surely not warranted in asking this office to set aside FREDERICK 1. ALLEN VS. THE UNITED STATFS. 21 all rules of procedure and permit piecemeal appeals on motion merely because of the fear that the tribunals may overlook or disregard the question at final hearing. No good reason is seen for changing the provision in Rule 124 here in controversy, Which was adopted and approved by a long line of Com- missioners of Patents, among whom have been some of the ablest patent lawyers in the country, and which rule has been acquiesced in by patent attorneys practicing before the Office for the Jast quarter of a century. It is noted that a petition similar to this one was denied by the assistant commissioner on June 29, 1904, and that this is in effect 44 a request for a reconsideration of the matter. The petition is denied. F. I. ALLEN, Commissioner. DECEMBER 6, 1904. Endorsed: Leave to amend the petition herein in the particulars stated, granted. ; Harry M. CLABAuGH, Chief Justice Supreme Court, District of Columbia. Stipulation. Filed January 3, 1905. Supreme Court of the District of Columbia. Unirep SrTares EX RELATIONE GEORGE A. ) * Lowry and Planters’ Compress Company Us, Freperick I, ALLEN, COMMISSIONER OF PAT- | 1) 47953 At Jaw ents, Edward B. Moore, Assistant Commis- (**°*{~??" “4 U8: sioner of Patents, S. W. Stocking, J. H. Brick- enstein, and Thomas G. Steward, board of examiners in chief in the U. 8S. Patent Office. In view of the fact that the petition in the above-entitled cause has been amended and of the fact that a copy of the amended petition 45 has been served upon the respondent F. I. Allen, Commissioner of Patents, it is stipulated by and between counsel, first, that the failure to serve a copy of the original petition upon the respondent F. I. Allen within the time fixed in the order to show cause is waived; sec- ond, that the answer of said F. I. Allen to the order to show cause shall be taken to be the same as the answer of the respondent E. B. Moore; and, third, that the respondents admit the allegations in paragraphs X Ia, XIb in the amended petition. A. V. CUSHMAN, Attorney for Petitioner. Joun M. Corr, Attorney for Respondents, occa oe ee — 22 FREDERICK I. ALLEN VS. THE UNITED STATES. Order granting writ of mandamus, &e. Filed January 14, 1905. Supreme Court of the District of Columbia. THe Unitrep States or AMERICA EX RELA- ) tione George A. Lowry and Planters’ Com- press Company Us. Freperick I. ALLEN, ComMIssIONER oF \ No. 47053. At law. Patents, and S. W. Stocking, J. H. Bricken- stein, and Thomas G. Steward, board of ex- aminers in chief in the United States Patent Office. 46 To the honorable Frederick I. Allen, Commissioner of Patents; Edward B. Moore, Assistant Commissioner of Patents, and S. W, Stocking, J. H. Brickenstein, and Thomas G. Steward, board of ex- aminers in chief in the United States Patent Office, greeting: Whereas one George A. Lowry, assignor to Planters Compress Com- pany, hath heretofore in the United States Patent Office been made by the officials of the United States Patent Office a party to an interference (No. 21,517) declared between a patent (No. 661,475) granted to said Lowry and an application of one William L. Spoon (Serial No. 74,985); and whereas the said Lowry in the United States Patent Office did move to dissolve said interference, in accordance with the law and practice in such cases made and provided ; and whereas said motion to dissolve said interference was denied by the primary examiner before whom the motion was made; and whereas said Lowry did then prosecute an appeal from the decision of said primary examiner to the board of examiners in chief in the United States Patent Offiee, under the provisions of sections 482 and 4909 of the Revised Statutes of the United States; and whereas the said appeal was duly docketed and a day set for hearing before the said board of examiners in chief in the United States Patent Office; and whereas pending said appeal Spoon aforesaid moved to dismiss said appeal, and thereupon, after hearing said motion to dismiss, the said board of examiners in chief did dismiss said appeal, and said appeal now stands dismissed ; and whereas said Lowry did thereupon petition the respondent, Edward B. Moore, Assistant Commissioner of Patents, performing 47 the duties of the office of the Commissioner of Patents as an Acting Commissioner of Patents, to revise and reverse the said decision of the board of examiners in chief dismissing said Lowry’s lawful appeal, ‘and to order and direct the said board to entertain said Lowry’s appeal and hear and determine the merits thereof according to law; and whereas the said honorable Assistant Commissioner of Patents, after hearing, did refuse the prayer of said petition; and whereas said Lowry did thereupon appeal to the respondent, Frederick I. Allen, Commissioner of Patents, to review, revise, and reverse the said decision of the Assistant Commis- sioner of Patents and to revise and reverse the said decision of the board of examiners in chief dismissing said Lowry’s lawful appeal, and to order and direct the said board to entertain said Lowry’s appeal and to »~ FREDERICK I. ALLEN VS. THE UNITED STATES. 23 hear and determine the merits thereof according to law; and whereas the said honorable Commissioner of Patents, after hearing, did refuse the prayer of said petition; and whereas said Lowry and said Planters Compress Company did thereafter obtain from this court an order to show cause, addressed to the respondents aforenamed, why a p’remptory writ of mandamus should not issue to compel the respondents to perform their statutory duty to try and determine upon the merits the appeal of said Lowry to the board of examiners in chief in the United States Patent Office; and whereas at a late session of this court, held at Washington, the respondents made return to the said order, setting up that the said Lowry had no right of appeal under the Statutes of the United States, and that a lawfully made rule, No, 124 of the Rules of Practice 48 of the United States Patent Office, denied to a party to an inter- ference the right of appeal from the primary examiner to the board of examiners in chief in an interference case, and setting up also that the decision of the primary examiner appealed from was a decision of a ques- tion interlocutory in the interference and not of an appealable nature according to the decision of the Court of Appeals in the District of Colum- bia, in the case of Westinghouse v. Duncan (66 O. G., 1009), and that in view of all the facts and law above set forth the motion to dismiss Lowry’s said appeal had been granted and rightfully granted; and whereas ut the same session of this court, upon consideration of the returns of the respondents and of the cause severally shown by them therein against the awarding and issuing of the said writ of mandamus as prayed for by said Lowry and Planters Compress Company, and upon consideration of the arguments of counsel as well on behalf of the sev- eral respondents showing cause as aforesaid as on behalf of said petition- ers in support of the said rule, it was considered by this court that the several respondents had certified and returned to this court an insuffi- cient cause for having dismissed the said appeal and for having refused to entertain and decide said appeal upon the merits and against the awarding and issuing of the said mandamus pursuant to the rule to show cause aforesaid ; and this court, being of this opinion and having deter- mined and adjudged upon the matter aforesaid that the said appeal was lawfully taken and that said rule 124, so far as it denies the right of the petitioner Lowry to appeal from a decision of the primary examiner to the board of examiners in chief, is null and void, as inconsistent with law, it is this 14th day of January, 1905, ordered and adjudged: 49 ist. That the petition of the relators praying that a writ of mandamus issue requiring and commanding you, the said respond- ent, Frederick I. Allen, Commissioner of Patents, to direct the said board of examiners ir chief to cause to be reinstated and to reinstate and take jurisdiction of Lowry’s said appeal and to entertain and consider the merits thereof and to decide the same upon the merits thereof, be granted. 2nd. That the rule to show cause be discharged and the petition of the relators be denied as to the respondents Edward B. Moore, Assistant Commissioner of Patents, and 8. W. Stocking, G. H. Brickenstein, and Thomas J. Steward, board of examiners in chief in the United States . Patent Office. Harry M. CLapaven, Chief Justice. 24 FREDERICK I. ALLEN VS. THE UNITED STATES. The respondent, Frederick I, Allen, Commissioner of Patents, herein prays an appeal to the Court of Appeals of the District of Columbia from the judgment of this court granting the petition of the relators, and such appeal is hereby allowed. Harry M. CLaBpaven, Chief Justice, Approved as to form: Joun M. Corr, Attorney for Respondents. 50 Order for transcript of record. Filed January 20, 1905. In the Supreme Court of the District of Columbia. Tue Unirep Srates OF AMERICA, EX RELATIONE| George A. Lowry and Planters Compress Com- pany, Us. ie eae FREDERICK I. ALLEN, COMMISSIONER OF PAT- _ Ne. ara At ents; Edward B. Moore, Assistant Commissioner ere of Patents, and S. W. Stocking, J. H. Bricken- stein, and T. G. Steward, board of examiners in chief in the United States Patent Office. The clerk will please make a transcript in the above-entitled case for use on appeal, including the following papers: 1. Petition for mandamus and attached exhibits, filed July 7, 1904. 2. Return of respondent Edward B. Moore, filed July 14, 1904. 3. Replication and motion for writ, filed July 26, 1904, 4. Amended petition, filed December 29, 1904. : 5. Stipulation of counsel, filed January 3, 1905. 6. Final order and appeal, filed January 14, 1905. Joun M. Cort, Attorney for Respondent, 51 Supreme Court of the District of Columbia. UNITED STATES OF AMERICA, District of Columbia, ss: I, John R. Young, clerk of the Supreme Court of the District of Columbia, hereby certify the fore-oing pages, numbered from 1 to 50, inclusive, to be a true and correct transcript of the record, as per direc- tions of counsel herein filed, copy of which is made part of this transcript, in cause No. 47053, at law, wherein The United States of America, ex relatione George A. Lowry and Planters Compress Company, are relators, and Frederick I. Allen, Commissioner of Patents, et al., are respondents, as the same remains upon the files and of record in said court. FREDERICK I. ALLEN VS. THE UNITED STATES. 25 In testimony whereof I hereunto subscribe my name and affix the seal of said court, at the city of Washington, in said District, this 24th day of February, A. D. 1905. [sEAL. | Joun R. YounG, Clerk. (Endorsed on cover :) District of Columbia Supreme Court. No. 1521. Frederick I. Allen, Commissioner of Patents, appellant, vs. The United States of America, ex relatione George A. Lowry et al. Court of Appeals, District of Columbia. Filed February 24, 1905. Henry W. Hodges, clerk. ' O Sitcnaeemnieas ae . a 26 *#REDERICK I. ALLEN VS. THE UNITED STATES, Wepnespay, April 5th, A. D. 1905. Freperick I. Antex, Commissioner of Patents, Ap- ) pellant, v8. » No. 152). Tue Untrep States or America ec Relatione Grorak A. Lowry and Planters Compress Company. The argument in the above entitled cause was conrmenced by Mr, J. M. Coit, attorney for the appellant, and was continued by Messrs, Oliver Mitchell and Edmund Wetmore, attorneys for the appellees, and was concluded by Mr. J. M. Coit, attorney for the appellant. On motion, both sides are allowed to file supplemental brief herein if so advised. pellant, vs. Tae Unirep Srares or America ex Relatione Grorae A. Lowry and Planters Compress Company. Freperick [. Atten, Commissioner of Patents, Ap- ) L ‘ No. 1521, Opinion. (Mr. Justice Durxe delivered the opinion of the court :) This appeal is taken from a judgment of the supreme court of the District of Columbia, granting the petition of the relators that a mandamus issue commanding the Commissioner of Patents to direct the examiners-in-chief of the Patent Office to reinstate and take jurisdiction of an appeal taken by Lowry from the ruling of the primary examiner denying his motion to dissolve an interference declared by the Patent Office between his unexpired patent and a pending application for patent filed by one William L. Spoon. The interference was declared under section 4904 of the Revised Statutes. The record discloses that the interference was declared and notice thereof duly given to the parties as required by law. In accordance with Patent Office rule 122, which is one of the rules promulgated by the Commissioner of Patents under the au- thority conferred upon him by section 483 of the Revised Statutes, Lowry moved to dissolve the interference upon the various grounds specified in the rule and that motion was transmitted by the exam- iner of interferences to the proper principal examiner for a hearing. The reason urged at the hearing by Lowry for the dissolution was that Spoon had no right to make the claims in controversy because his application was for an inoperative device. The petition sets forth and the answer admits that various pro- ceedings were had in the interference after Lowry’s motion to dis- solve was transmitted to the principal examiner and before his final — refusal to dissolve the interference, which denial led to Lowry’s ap- — peal to the examiners-in-chief, which was by them dismissed and FREDERICK I. ALLEN VS. THE UNITED STATES. 27 which is required to be reinstated and heard by the mandamus granted by the court below. It is unnecessary to refer to these various proceedings, for no alle- gation is made that any of them were irregular or that they were contrary to the statutes and rules governing the conduct of interfer- ence proceedings, and therefore, they have no legitimate bearing upon the question raised by the petition for the mandamus. The facts which raise the question as to the relator’s right to the mandamus may be briefly summarized. Lowry having been made a party to an interference, as provided by section 4904, made a mo- tion for its dissolution in accordance with Patent Office rule 122, which motion being denied by the principal examiner, who ruled that Spoon had the right to make the claims, Lowry filed an appeal to the examiners-in-chief, although Patent Office rule 124 expressly rovided that no appeal could be taken from a ruling by the exam- iner that a party to an interference had the right to make the inter- fering claims. Upon motion duly made Lowry’s appeal was dis- missed by the examiners-in-chief, and, the Commissioner of Patents having denied Lowry’s petition for an order directing the examiners- in-chief to reinstate and determine the appeal, he applied to the supreme court of the District of Columbia for a writ of mandamus, which was granted. The question which it becomes necessary for us to decide is sim- ply whether the court below erred in issuing the mandamus com- manding the Commissioner to direct the examiners-in-chief to rein- state and determine the appeal. It is contended on behalf of the relators that the rule is contrary to law because it deprives a party to an interference of the right to an appeal given him by the statute. If this contention be correct, then the court below rightly granted the mandamus. If not, its grant was an error and must be reversed. The paragraph of rule 124 in question provides that from a decis- ion of the primary examiner, affirming the patentability of the claim or the applicant’s right to make the same, no appeal can be taken. No question has or can be raised that the Commissioner of Patents has the right to regulate the conduct of proceedings in the Patent Office, including thereunder interference proceedings, by law- fal rules, provided they are approved by the Secretary of the In- terior, as the rule in question has been. Sec. 483, U. S. Revised Statutes. It was incumbent upon Lowry, in order to entitle him to a writ of mandamus, to show that he had a clear right of appeal under the statute relating to appeals in interference cases. Hx parte Cut- ting, 94 U.S. 14. The sections of the statute and the rules of the Patent Office, which are to be considered in disposing of this appeal, are sections 482, 483, 4904, and 4909, and rules 122 and 124. These read as follows: “Sec. 482. The examiners-in-chief shall be persons of competent legal knowledge and scientific ability, whose duty it shall be, on the written petition of the appellant, to revise and determine upon the validity of the adverse decisions of examiners upon applications for patents, < for reissues of patents, and in interference cases ; and, 1—311 28 FREDERICK fI. ALLEN VS. THE UNITED STATES. when required by the Commissioner, they shall hear and report upon claims for extensions, and perform such other like duties ashe may assigu them. “Sec. 483. The Commissioner of Patents, subject to the approval of the Secretary of the Interior, may from time to time establish reg. ulations, not inconsistent with law, for the conduct of proceedings in the Patent Office. “ Sec. 4904. Whenever an application is made for a patent which, in the opinion of the Commissioner, would interfere with any pend. ing application, or with any unexpired patent, he shall give notice thereof to the applicants, or applicant and patentee, as the case may be, and shall direct the primary examiner to proceed to determine the question of priority of invention. And the Commissioner may issue a patent to the party who is adjudged the prio¢ inventor, unless the adverse party appeals from the decision of the primary examiner, or of the board of examiners-in-chief, as the case may be, within a not less than 20 days, as the Commissioner shall pre. scrlve. “Sue. 4909. Every applicant for a patent or for the reissue of 4 patent, any of the claims of which have been twice rejected, and every party to an interference, may appeal from the decision of the primary examiner, or of the examiner in charge of interferences in such case, to the board of examiners-in-chief; having once paid the fee for such appeal. “122. Motions to dissolve an interference upon the ground that no interference 1n fact exists, or that there has been such irregularity in declaring the same as will preclude a proper determination of the question of priority, or which deny the patentability of an appli- eant’s claim, or his right to make the claim, should, if possible, be made not later than the twentieth day after the statements of the parties have been received and approved. Such motions, and all motions of a similar character should be accompanied by a motion to transmit the same to the primary examiner, and such motion to transmit should be noticed for hearing upon a day certain before the examiner of interferences. When in proper form, the motion presented will be transmitted by the examiner of interferences, with the files and papers, to the proper primary examiner for his deter- mination, who will thereupon fix a day certain when the said motion will be heard before him upon the merits, and give notice thereof to all the parties. Ifa stay of proceedings be desired, a motion there- for should accompany the motion for transmission. “124. Appeal may be taken directly to the Commissioner from decisions on all motions except the following: (1) On motions to dis- solve which deny the patentability of applicant’s claim; (2) on motions to dissolve which deny the right of an applicant to make the claim; (8) on motions involving the merits of the invention. — Decisions on these motions, when appealable, go to the examiners in chief, in the first instance, and upon such appeals the questions shall be heard inter partes. “From a decision of the primary examiner affirming the patenta- FREDERICK I. ALLEN VS. THE UNITED STATES. 29 bility of the claim or the applicant’s right to make the same no appeal can be taken.” ite ft will be helpful in determining the question, to consider the his- tory of the legislation relating to interferences and the rules promul- ted from time totime by the Commissioner of Patents. Congress, as early as 1798, recognizing the likelihood of two or more different arties claiming a prior inventorship of the same invention, and the necessity of providing for a determination of such question, made provision therefor, which in some form or other has continued to this day. ‘The patent act of 1793 provided that in case of interfer- ing applications, the same should be submitted to three arbitrators, the decision of a majority of whom should be final as far as related to the grant of a patent. ‘This provision remained in force until the patent act of 1836. ‘This act created the Patent Office and inaugu- rated the present examination system, based on novelty as well as usefulness. Under the prior acts it may be stated that patents were granted without examination as to novelty, the only questions being considered were usefulness, importance, and the form of the papers. Section 8 of the act of 1836 provided for the determination of ques- tions of priority of invention between interfering applications and between such applications and unexpired patents. Here first ap- pears the provision for bringing unexpired patents into interference proceedings. Of course the patent could not be recalled or revoked should the interference result in an award of priority to the appli- cant. The patentee could then, as now, bid defiance to the Patent Office. All that could be done was to issue a patent to the applicant, in which event there would be two outstanding patents for the same invention. Section 16 of the act provided a remedy forthis, and also further relief for the applicant should his application for a patent be denied by the decision of the board of examiners. Such relief was by bill in equity, which could be filed by either party, whereupon the court could consider the whole matter de novo, and declare either or both patents void in whole or in part, or, where one party was an applicant, could award a patent to him. In other words, interference proceedings in the Patent Office were not final under the act of 1836, nor have they since been, for similar provis- ions are found in the later statutes on the subject and are now set forth in sections 4915 and 4918 of the Revised Statutes. Under the act of 1886 the Commissioner was directed to give notice to the parties, and, if either was dissatisfied with his decision on the question of priority made after hearing, an appeal could be taken to a board of three disinterested persons appointed by the Secretary of State, and the decision of a majority was binding upon the Commissioner of Patents. By the patent act of 1839 this board was ubolished and its powers were vested in the chief justice of the district court of the United States for the District of Columbia. The act of 1852 extended a like authority to the assistant judges of the circuit court of said District. The next change in procedure oc- curred when the patent act of March 2, 1861, went into effect. Sec- tion 2 of this act provided for the appointment of three examiners- _ in-chief, whose duty as to appeals in interference proceedings will 30 FREDERICK I. ALLEN VS. THE UNITED STATES. later be set forth. From their decisions appeals were provided to the Commissioner of Patents. At this time there was no such officer as an examiner of interferences and the control of interferences was in the hands of the various primary examiners. Their decisions jn both ex parte and interference cases were appealable successively to the examiners-in-chief, the Commissioner of Patents, and to any one of the justices of the circuit court. The next change occurred when the act known as the “ Consolidated patent act,” approved July, 1870, went into effect. This act provided for the appointment of a special examiner of interferences to decide the question of priority in the first instance, and whose decisions were appeaiable successively to the examiners-in-chief and to the Commissioner, whose decision was final and so remained until the Court of Appeals of the District of Columbia was established in 1893. Section 42 of the act of 1870 contains the provision for interferences. The act of 1870 was re. pealed by the Revised Statutes of 1874, but section 42 of the earlier act was continued in the same terms as section 4904 of the Revised Statutes, which provides for the decision of the question of priority. From the foregoing it is apparent that interferences were insti- tuted for the purpose of deciding the question of priority of inven. tion, and for no other purpose, and it logically follows that the reviews or appeals provided were to be from the decisions awarding priority by the officer who was authorized to decide the question of priority in the first instance. For example, the act of 1836 in pro. viding for appeals expressly says that the appeal is one from the decision on the question of priority. The act of 1861 providing for the appointment of examiners-in-chief does not in words ify what the appeals in interference cases are to embrace, but manifestly they could only relate to the question of priority, as that was the only question for the determination of which the interference was instituted. When they came to pass upon the question of priority they doubtless might pass upon such matters as were essential to the correct determination of that question. Neither the statute cre- ating the board of examiners-in-chief, nor any other, provides for motions to dissolve an interference for any reason after it was once declared, and not providing for such motions they do not provide for any appeals therefrom. In fact, motions to dissolve are not the creature of any statute, but are the rules of the Patent Office, and no provision, by Patent Office rules, for such motions were made until many years after the statutes relating to interferences were en- acted. Section 42 of the act of 1870, re-enacted in 1874 and now in force and known as section 4904 of the Revised Statutes, in line with the earlier statutes, provides for the institution of interferences for the sole purpose of determining the question of priority of invention, and the fair intendment of section 4909, which provides for appeals in interference cases, is that such appeals only go to the question of ery of invention, for the determination of which they are insti- tuted. We can not emphasize too strongly that, in our opinion, the stat- utes relating to interferences only provide that they shall be insti- tuted for the sole purpose of determining priority of invention, pial aa rs FREDERICK I. ALLEN VS. THE UNITED STATES. 31 and that it logically follows that appeals in such proceedings, so far as the statutes go, only provide for appeals from the decisions of priority. The Commissioner of Patents, under the authority given to regulate the proceedings in the Patent Office, is clothed with wer to regulate all interlocutory proceedings in interference cases y rules not inconsistent with law. If he deems it wise to provide, aiter the interference has once been declared, for remandiag the in- terference to the primary examiner for the purpose of an interlocu- tory hearing and determination of a motion to dissolve it for any reasop which he considers inay be in the interest of the public or the parties, we take it that he has full power to do so, and that he may also provide that such motions may or may not in some or all respects be reviewed by the appellate tribunals of the Patent Office, in so doing he is not thereby depriving any party of any statu- tory right to have all questions passed upon at final hearing, and on appeals therefrom, which are necessary for a correct determination of the question of priority, which is the sole question for which in- terferences are declared. If we find that at the time of the enact- ment of section 4909 there was no provision either in the statutes or the rules of the Patent Office for any such proceeding as a motion to dissolve, we fail to see how it can be assumed that Congress meant to provide for an appeal from the denial of a motion of so plainly an interlocutory character. It would be putting a forced coustruction upon the statute to so hold. If it be assumed that there is a legal right in a party to an interference, after it is once declared, to make an interlocutory motion for its dissolution before the final hearing on the question of priority, irrespective of any statute or rule, we fail to comprehend upon what principle it can be success- fully contended that the right of an appeal to a higher tribunal lies, in the absence of express grant of such an appeal. It is on interloc- utory matter, and at best brings up only partly and indirectly the question of priority, and if successive appeals be permitted the re- sult would be only to add another terror to the many surround- ing an interference proceeding in the Patent Office. From the simple and summary mode first adopted for determining the question of priority of invention that proceeding, by system of Patent Office rules, has grown to be a veritable old man of the sea, and the unfortunate inventor who becomes involved therein is a second Sinbad the sailor. It is known to all who are fa- miliar with the practice in interference proceedings that by motions, petitions, and appeals of every conceivable character that the in- genuity of the skilled attorney can devise, interferences can be and are prolonged for years, to the injury of the public, and often to the financial ruin of the parties. It does not appear when the pres- ent interference was declared, but in view of all the sosuelina had, as disclosed by the record, it has been a long time and no tes- a yet been taken. Should we affirm the decision of the court below, the reasons for which are not set forth, and reverse the practice of the Patent Office as it has stood unchanged for at least twenty-five years, we would be placing still another burden of suc- cessive piecemeal appeals upon the unfortunate interferant in a pro- 32 FREDERICK I. ALLEN VS. THE UNITED STATES. ceeding which, when decided, is not final, for, as we have shown, when the defeated party is an applicant he can, if defeated in the Patent Office, proceed by bill in equity under section 4915 of the Revised Statutes to obtain a patent, and if one be finally awarded him he can again try the question of priority with his former sue. cessful antagonist under section 4918 of the Revised Statutes. Ip the present case, as we have shown, should a patent be awarded to Spoon, the question of priority could be at once retried by Lowry, or by Spoon, under the latter section. We refer to this feature of the case with full knowledge that the motives of a party in assert. ing a legal right can not deprive him of it, and without in the re. motest manner intending to question the good faith of Lowry, but because the question is so important to the rights of the public and of inventors, which are best subserved by a speedy grant of lawful patents to rightful parties, and with the least possible expense. We should not, however, in the light of what is really accomplished through an interference, go out of our way, or unduly search for some plausible ground on which to predicate a finding that Lowry has a clear right of appeal from an examiner’s decision in an inter. locutory proceeding. Such rulings, as we have said, are not ap- — prior to final judgment or decree unless it be so provided y statute. Eney. of Pl. and Pr., vol. 2, page 81. We have stated in general terms that we find nothing in the statutes permitting an appeal in such interlocutory motions, but be- fore referring more particularly to the statutes in question it will be well to examine the history of interlocutory motions to dissolve in- terferences, provision for which has from time to time been made by the rules of the Patent Office. The first provision in the rules relating to their dissolution because improperly declared is found in rule 58 of August 1, 1869, eight years after the creation of the board of examiners-in-chief. This rule says: “58. Cases of interferences will, when the issue is made up and the testimony taken, be tried before an examiner specially detailed for that purpose. If an interference has been properly declared, it will not be dissolved without judgment of priority, founded upon the testimony or the written concession of one of the parties.” It will be seen that this does not, except by interference, provide for a dissolution of an interference, and no ground is stated upon which a motion may be based, save the general one that it has been improperly declared, and no provision of any kind is made for an appeal from any order made after the decision of the motion. The act of 1870 having provided for an examiner of interfer- ences, provision was made in rule 59, of July 15, 1870, for their trial before such officer. Its full provisions are as follows : “59. Cases of interference will, when the issue is made up and the testimony taken, be tried before the examiner in charge of in- terferences. If an interference has been properly declared, it will not be dissolved without judgment of priority, founded upon the testimony or the written concessiun of one of the parties, unless the invention is found not ‘o be patentable, or to have been abandoned, ‘slots vr cide So i ia bd be sad oo FREDERICK I. ALLEN VS, THR UNITED STATRS. 33 or that it has been in public use for more than two years prior to the application of either party, or that no interference in fact exists.” The last paragraph of this rule, as amended in 1871, contains the first express provision for an interlocutory motion for dissolution of an interference. It says: «A motion for a dissolution of an interference on the ground that it was improperly declared, if made before the taking of testimony, will be heard by the primary examiner who declared the interfer- nee.” ; On September 1, 1873, the following clause was added to the rule: “Upon such hearing the primary examiner will recommend ihe granting or refusal of such motion, and the examiner in charge of interferences will order accordingly.” The rule was changed April 1, 1875, so as to read as follows: “59. An interference will not be declared until the subject-matter involved is decided to be patentable. If after being declared it is found that no interference in fact exists, or that there has been such irregularity in declaring the same as will preclude the proper deter- mination of the question of right between the parties, it will be dis- solved, and an appeal may be taken to the Commissioner in person.” It will be seon that here first is nade any provision for an appeal from the decision of the interlocutory proceeding and such appeal was allowed to the Commissioner in person, November 1, 1876, the phraseology of this rule was changed in matters not material to the question under consideration and the following clause added to it: “ But if the examiner should decide that the subject-matter is not patentable in view of the state of the art the interference will be dissolved and the matter decided upon can be proceeded with ex parte.” Without material modification this rule remained in force until the general revision of rules of December 1, 1879, when the following rules relating to dissolution were adopted : “116. Motions to dissolve an interference which deny the patent- ability of an applicant’s claim, or his right to make the claim, will be submitted to the examiner of interferences before the day fixed for filing the statements provided fez in rules 97, 101, and 102, and will be transmitted by him, with che files and papers, to the primary examiner, who will take jurisciction of the case for the determina- tion of such motions, and will return the files and papers to the ex- aminer of interferences, with his decision, at the expiration of the time limited for appeal, if no appeal shall have been taken, or sooner if the party entitled to appeal shall file a waiver in writing of his right of appeal ; and such decision will be binding on the examiner of interferences unless revised or modified on appea: From a de- cision of the primary examiner on such motion, denying the patent- ability of a claim or the right of an applicant to make it, an appeal may be taken ex parte to the examiners-in-chief; but from his de- cision affirming its patentability or the applicant’s right no appeal can be taken. “117. Motions to dissolve an interference upon the ground that no interference in fact exists, or that there has been such irregu- 84 FREDERICK I. ALLEN VS. THE UNITED STATES. larity in declaring the same as will preclude the proper determina. tion of the question of priority between the parties, and all other lawful motions exceptithose mentionedt in rule 116, will be made before the tribunal having jurisdiction at the time. * * * “118. Appeal may be taken directly to the Commissioner from decisions on all motions, except motions to dissolve interferences denying the patentability of applicant’s claims or their right to make the claims, and other lawful motions involving the merits of the case, which, when appealable, may be appealed to the board of ex- aminers-in-chief (see rules 116, 141).” Here first appears provision for an interlocutory motion to dis- solve an interference upon the ground that a party to it has not the right to make the interfering claim, which was the ground urged by Lowry upon the hearing of his motion. The provisions for ap- peals are found in rules 116 and 118, which provide an appeal to the examiners-in-chief from (among other decisions) one denying the right of an applicant to make the interfering claim. No pro- vision is made for an appeal from a decision affirming his right to make the interfering claim. September 15, 1880, the following clause was added to rule 118, and it has been ever since in force. It reads, “ from a decision affirming the patentability of the claim, or the applicant’s right to make the same, no appeal can be taken.” This clause simply makes clear and positive the then well-settled rule of the office that no appeal was permitted in any proceeding where the examiner held that a claim was patentable to the party making it. The Commissioner, however, was of course not debarred from exercising his supervisory power and for lawful reasous re- versing the holding of the examiner and refusing to allow the claim. From that time on changes have been made in the rules relating to the conduct of interferences until the rules have the phraseology shown in present rules 122 and 124. It will be seen that at no time has an appeal been provided from a decision rendered on bearing an interlocutory motion for a dissolution of an interference affirm- ing the right of a party to make the interfering claim. It is urged on behalf of appellees that rule 55 of July 15, 1870, and rule 55 of 1871 (the latter when read in the light of rule 48 of the same date), provided for appeals to the examiners-in-chief from decisions on interlocutory motions for the dissolution of inter- ferences. ‘These rules are as follows: “ 55. In cases of interference, parties have the same remedy by appeal as other applicants, to the examiners-in-chief and to the Commissioner, but no appeal lies in such cases from the decision of the Commissioner. Appeals in interference cases should be accom- panied by a brief statement of the reasons thereof. “55. In cases of interference appeals may be taken to the ex- aminers-in-chief and to the Commissioner in the manner provided in rule 48. “ 48. In cases of interference parties have the same remedy by ap- peal to the examiners-in-chief and to the Commissioner, as in ex parte cases, but no appeal lies in such cases from the decision of the Com- missoner.” * *. * NLL ERLE BE EP ELEIG APL LES GAL EIT iE ELLIE LINE ASLO LEG RET EY CS OT OL ———— S : PO Neate hy ene FREDERICK I. ALLEN V8. THE UNITED STATES. We do not so read them, because at the time of their promulga- tion there were in force no rules providing for such motions, and, secondly, because the statute of 1870 relating to ap als provides that the appeals in interference were only from final decisions awarding priority. | Nor, as we have said, can authority for appeals in such matters to the examiners-in-chief be predicated upon the clause of rule 59 of 1875. The 1877 rule 59 is, in respect to appeals, very similar to that of 1875, but counsel for appellees seem to have overlooked that rule and considered rule 59 of 1877 as a new rule. They have not quite correctly quoted rule 59 of 1877. But both rules give the right of appeal, not to the examiners-in-chief, but to the Commis- sioner, and it will be remembered that at this date no provision was made in the rules for interlocutory motions to dissolve interfer- ences on the ground that a party to it had not the right to make the interfering claim. While we recognize the rule, as laid down in Houghton v. Payne, 194 U. S. 88, and in other decisions of the Supreme Court, that if a ractice is contrary to law it is not made lawful by the practice of a epartment for a long period of time, yet due regard should be + iven to a practice which admittedly has prevailed for more than twenty- five years in proceedings of a judicial character, even should there be a reasonable doubt in the mind of the court as to the proper construction to be placed upon a statute. ‘The Supreme Court said in Bate Refrigerating Co. v. Sulzberger, 157 U.S. 1: «x * * Tf the statute be not so explicit as to preclude con- struction ; if upon applying to it the established rules of interpreta- tion; if looking at it in the light of previous legislation on the subject, if there be reasonable ground for adopting one of two con- structions ; this court, without departing from sound principle, may well adopt that construction which is in harmony with the settled practice of the executive branch of the Government.” With such light as is afforded from a consideration of prior statutes and the rules made by the Commissioner of Patents under statutory authority, we will more fully consider section 4809, which is the same as section 46 of the act of July 8, 1870. Provision was first made for a board of examiners-in-chief by section 2 of the act of March 2, 1861. ‘That section provided that the duty of the board was “ on the written petition of the applicant for that purpose being filed, to revise and determine upon the validity of decisions made by examiners when adverse to the grant of letters patent and also to revise and determine in like manner upon the validity of the decisions of examiners in interference cases,” etc. Manifestly, the appellate power to revise the decision of examiners in interference cases referred to such decisions as examiners then had the power to make in such proceedings, and we are not referred to any statute or Patent Office rule, nor have we been able to discover any such statute or rule, which gave to the examiners any question for them to de- cide but that of priority. There was at that time no statutory authority lodged in examiners to decide interference cases, but as the ee “g the Patent Office increased it became necessary for yale St ag sar ae. Ly oes eae neg. PBs a Ne TS GEL LET SET NOON RET PY HO LN AN OES RET ES PRIE ED BS IAT . SHANI UE TIA SOIREE 36 FREDERICK I. ALLEN VS. THE UNITED STATES, the Commissioner of Patents to delegate more and more of his duties to his assistants, but no statutory authority is shown to have been given to the Commissioner at this time to decide more than the question of priority of invention. Undoubtedly it was within his power and his duty in deciding that question to examine and decide all ancillary matters necessary to the correct determination of the main question, and when he delegated his authority in interference cases, so far as he could, to his assistants, it is fair to presume that such ancillary questions, if necessary to the decision of the question of priority, could be examined and decided by them. But it by no means follows that such ancillary questions were to be decided by him, or them, in advance of the decision of the main question— that of priority. Therefore we conclude that when an appeal was given to the examiners-in-chief to review the decisions of examiners in interference cases, Congress had not in mind to confer power of review upon them except as to the question of priority, and such ap- cillary questions as the examiners had passed upon when deciding the question of priority for which the interference was instituted, When section 46 of the act of 1870 was written there had been ere. ated an examiner of interferences, who took the place of the exam- iners in deciding the only question for which an interference is instituted. Therefore we find provision made for appeals from his decisions, and this was carried forward in section 4909 of the revision, For convenience, we again set forth this section: “Sec. 4909. Every applicant for a patent or for the reissue of a patent, any of the claims of which have been twice rejected, and every party to «n interference, may appeal from the decision of the primary examiner, or of the examiner in charge of interferences in such case, to the board of examiners-in-chief, having once paid the fee for such appeal.” In the light of the previous statuies we think that the proper construction to be placed on this section is as though it read, every applicant for a patent or for the reissue of a patent, any of the claims of which have been twice rejected, may appeal from the de- cision of the primary examiner, and every party to an interference may appeal from the decision of the examiner in charge of inter. ferences in such case, to the board of examiners-in-chief. In other words, to abbreviate and muke the section more suecinct the words “may appeal from the decision ” were used but once, but we think that thereby clearness was sacrificed for brevity. We are also of the opinion that the decisions relating to interferences, referred to in sections 482, 4904, and 4909 of the Revised Statutes, from which ap- peals are allowed to the examiners-in-chief and from them to the Commissioner of Patents, are final decisions and are not such as are made in interlocutory matters which do not of themselves preclude and prevent a decision of the question of priority, which is, as we have said, the purpose for which interferences are instituted. The act of 1893 which created this court provides that “any party aggrieved by a decision of the Commissioner of Patents in any in- terference case may appeal therefrom to said Court of Appeals.” We have construed tbat clause to refer only to final decisions by the FREDERICK I. ALLEN VS. THE UNITED STATES. 87 Commissioner in interference cases, and have refused to take juris- diction and decide interlocutory questions sought to be brought be- fore us on appeal in advance of an appeal taken in such cases to review a final decision awarding priority of invention. As we said in Westinghouse v. Duncan, 2 App. D. C. 131, in referring to appeals allowed by the statute, “the terms of the statute should receive a reasonable interpretation and be so construed as to avoid multiply - ing litigation or producing unnecessary delay and expense to the rties concerned, and to prevent, as far as possible, embarrassment and hindrance to the proceedings in the Patent Office.” We think this reasoning applies equally to.appeals in the Patent Office in in- terlocutory proceedings iu interferences. There should be some limit on appeals, for where three millions of dollars have been in- vested, as stated in this case, by the party holding the patent, there is every incentive to prolong the proceedings until the expiration of the patent, and if then the applicant is successful it means a second patent for 17 years, and the public, instead of paying tribute for 17 years, will have had a patent monopoly existing for twice that pe- riod, or for a goodly portion of it. The power to decide the question of priority, which is the sole question for which interferences were provided, as shown by a read- ing of every statute on the subject enacted from 1793 down to the present time, having been transferred from the examiners generally to the particular examiner designated as the examiner of interfer- ences, it became necessary to transfer this right of appeal in inter- ferences from the decisions of such examiners to the examiuer of interferences. It was not, as an examination of the rules of the Patent Office has shown, until 1871 that any provision was made for the dissolution of an interference before testimony had been taken and before a decision on the question ef priority was in order. Whether in the light of experience it has proven to have been in the interest of interferants and of the public, to provide the elabo- rate system of preliminary or interlocutory motions to dissolve in- terferences, which has been the outgrowth of the power lodged in the Commissioner under section 483, is perhaps a debatable question. However that may be, we think it clearly within his power in making provision for these interlocutory motions to limit the right of appeal where, as in the present case, the examiner has held that the applicant had the right to make the ciaims of the interference. Whatever right the relators may have to the judgment of the appellate tribunals of the Patent Office and of this court upon the question of an absence of right in Spoon to make the interfering claims because his device is inoperative, we think that right is not through an appeal from the refusal of the examiner to dissolve an interference upon the hearing of an interlocutory motion made for that purpose, where no right of appeal is granted by the rule under which the motion ismade. We take it that the Commissioner could abrogate both rules 122 and 124 without depriving parties to an interference of any statutory right. If he has the right to make rules for interlocutory motions, he cer- tainly has the right to repeal them. The right of a party to make the claim of an interference is not 38 FREDERICK I. ALLEN VS. THE UNITED STATES. finally determined by the decision of the examiner on a motion for a dissolution. This is clearly shown by rule 126 of the Patent Office under which the examiner of interferences or the examiners. in-chief before or on deciding the question of priority are authorized to call the attention of the Commissioner to the fact that no inter. ference exists, or that there is a statutory bar to the grantof g patent, etc., whereupon the interference may be remanded to the rimary examiner for examination and decision. Appeals are al- owed from his decision as in other cases. It is not necessary in thig proceeding to construe this rule or to pass upon the question whether the lack of a right of party to an interference to make a claim by reason of the inoperativeness of the invention disclosed in his appli. cation, does or does not relate to the question of priority as referred to in said rule. However this may be, it would seem that it might in many cases be quite difficult to decide the question of priority where the evidence showed that the device disclosed in the applica. tion was not operative. It will be time, however, to decide that question when it is presented in a case where we are called upon to decide the question of priority. We have, however, reviewed other ancillary questions when they have properly come before us on appeals from final judgments awarding priority of invention, Stevens v. Seher, 11 App. D. C. 245. Wehave declined to entertain appeals from decisions of the Patent Office that were not final de cisions. We are clearly of the opinion that the court below erred in grant- ing the petition for the writ of mandamus. Our reasons, summa- rized, are these: That a motion to dissolve an interference before the final hearing of the question of priority, and before the case is ready for such hearing, is an interlocutory proceeding and is not appealable unless made so by statute or rule of court; that no stat ute, and, more specifically stated, neither sections 482, 4904, or 4909 of the Revised Statutes, nor any rule of the Patent Office made by the Commissioner, gives the right of appeal to the examiners-in- chief from decisions made by the principal examiners on the heat- ing of a motion to dissolve, holding that a party has the right to make the claim which is the issue of an interference; that where the statute gives the right of appeal in interferences from decisions of any officer of original jurisdiction it means final decisions; that the right to such an appeal should be clear, and that if there is any doubt, although we believe there be none, as to the construction of the statutes claimed to confer the right, such doubt should be re- solved in favor of the long established and acquiesced-in practice of the Patent Office, which we believe is in the interest of interferants; that the provision for interlocutory motions to dissolve interferences is the creature of arule and not founded on statutory enactment | and that a party to an interference is not deprived of any statutory right toan appeal by reason of the rules not providing for an appeal from a decision of the examiner that a party has a right to make the interfering claim; that whatever right a party to an interfer- ence has to contest the right of his adversary to make the epee claim, such right if denied is reviewable, if at all, upon the fina Povey ee: OF BAO ESS AIELE EI CES PBT % Es e m) pi ore FREDERICK I. ALLEN VS. THE UNITED STATES. 39 decision of the question of priority, and such right of appeal as he has to have that question decided is to be considered on the hearing of the statutory appeals allowed from the decision of the question of priority by the examiner of interferences. he relators not having shown that they have a clear right of appeal which has been denied are not entitled to the writ of man- damus and therefore the court below erred in granting the order of January 14, 1905, awarding a writ of mandamus directing the Com- missioner of Patents to direct the exuminers-in-chief to reinstate and take jurisdiction of Lowry’s appeal and to entertain and consider the merits thereof and to decide the same upon the merits. It fol- lows that the order granting the writ of mandamus should be re- yersed, with costs, with directions to discharge the rule to show cause and to dismiss the petition. It is so ordered. Reversed. Wepnespay, May 24th, A. D. 1905. Faeperick I. ALLEN, Commissioner of Patents, Appellant, ge@ Unitep Stares OF AMERICA sa >No. 1521, April Term, 1905. ez Relatéone George A. Lowry and | Planers Compress Company. Appeal from the Supreme Court of the District of Columbia. This cause came on to be heard on the transcript of the record from the supreme court of the District of Columbia, and was argued by counsel, On consideration whereof, it is now here ordered and adjudged by this court that the order of the said supreme court, in this cause, be, and the same is hereby, reversed with costs; and that this cause be and the same is hereby remanded to the said supreme court with directions to distharge the rule to show cause and to dis- miss the petition. Per Mr. Justice DUELL. May 23, 1905. Tugspay, June 6th, A. D. 1905. Freperick I. ALLEN, Commissioner of Patents, Ap- pellant, vs. No. 1521. Tar Unirep States or America ex Relatione GEORGE A. Lowry and Planters Compress Company. : On motion of Mr. A. V. Cushman, of counsel for the appellees, it is ordered by the court that a writ of error to remove this cause to the Supreme Court of the United States issue, and the bond for costs is fixed at the sui of $300. 40 FREDERICK I. ALLKN VS. THE UNITED STATES. Frevericx [. Attex, Commissioner of Patents, Ap- ) pellant, v8. » No. 152}. Tne Unirep States or America ex Relatione Geonas | A. Lowry and Planters Compress Company. It is ordered by the court that the mandate in the above entitied cause be stayed until further order of the court. Unirep States or AMERICA, 88: The President of the United States to the lionorable the justices of the Court of Appeals of the District of Columbia, Greeting: Because in the record and proceedings, as also in the rendition of the judgment of a plea which isin the said Court of Appeals before you, or some of you, between Frederick I. Allen, Commissioner of Pat. ents, appellant, and The United States of America ex relation, George A. Lowry and Planters Compress Company, appellees, a manifest error hath happened, to the great damage of the § said appellees as by their complaint appears. We being willin that error, ifany hath been, should be duly corrected, and full al speedy justice done tothe parties aforesaid in this behalf, do com. mand you, if judgment be therein given, that then, under your seal, distinctly and openly, you send the record and proceedings afore. said, with all things concerning the same, to the Supreme Court of the United States, together with this writ, so that you have the sane in the said Supreme Court at Washington, within 30 days from the date hereof, that the record and proceedings aforesaid being inspected, the said Supreme Court may cause further to be done therein to correct that error, what of right, and according to the laws and customs of the United States should be done. Witness the Honorable Melville W. Fuller, Chief Justice of the United States, the 6th day of June, in the year of our Lord one thousand nine hundred and five. {Seal Court of Appeals, District of Columbia. } HENRY W. HODGES, Clerk of the Court of Appeals of the District of Columbia. Allowed by— Bond on Writ of Error. Know all men by these presents, that we, George A. Lowry, and Planters Compress Company, as principals, and American Bounding Company of Baltimore, as surety, are held and firmly bound unto Frederick I. Allen, Commissioner of Patents, in the full and just sum of three hundred dollars ($300.) to be paid to the said Frederick 1. Allen, Commissioner of Patents, his certain attorney, executors, EP YL LLL I” SOE FOE OLIN Fe HET CA FREDERICK I. ALLEN VS. THR UNITED STATRS. 41 administrators, or assigns ; to which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with our seals and dated this 13th day of June, in the year of our Lord one thousand nine hundred and five. Whereas, lately at a Court of Appeals of the District of Columbia, in a suit depending in said court, between United States ex relatione George A. Lowry and Planters Compress Company vs. Frederick I. Allen, Commissioner of Patents a judgment was rendered against the said George A. Lowry and Planters Compress Company, and the said George A. Lowry, and Planters Compress Company having ob- tained a writ of error and filed a copy thereof in the clerk’s office of the said court to reverse the judgment in the aforesaid suit, and a citation directed to the said Frederick I. Allen, Commissioner of Patents citing and sdmonishing him to be and appear at a Supreme Court of the United States, to be holden at Washington, within thirty days from the date thereof: Now, the condition of the above obligation is such, that if the said George A. Lowry and Planters Compress Company shall prosecute said writ of error to effect, and answer all damages and costs if they fail to make their plea good, then the above obligation to be void ; else to remain in full force and virtue. PLANTERS COMPRESS COMPANY, By FREDERIC 8. GOODWIN, Secretary. [Seal of Planters Compress Company. } AMERICAN BONDING COMPANY OF BALTIMORE, By THOS. J. DE LASHMOTT, Attorney in Fact. [Seal of American Bonding Company of Baltimore. } Sealed and delivered in the presence of— Approved— JOHN M. COIT, Counsel for Com’r Pats. Approved by— SETH SHEPARD, Chief Justice Court of Appeals of the District of Columbia. [Endorsed ‘| No.1521. Frederick I. Allen, Commissioner of Patents, appellant, vs. The United States of America ez relatione, George A. Lowry and Planters Compress Company. Bond on writ of error to Supreme Court U.S. Court of Appeals, District of Columbia. Filed June 14, 1905. Henry W. Hodges, clerk. 42 FREDERICK f. ALLEN VS. THE UNITED STATES. Unrrep States or AMERICA, 88: Te Frederick I. Allen, Commissioner of Patents, Greeting : You are hereby cited and admonished to be and appear at, Supreme Court of the United States, at Washington, within 30 days from the date hereof, pursuant to a writ of error filed in the clerk's office of the Court of Appeals of the District of Columbia, whergig. The United States of America ex relatione, George A. Lowry ang Planters Compress Company are plaintiffs in error, and you are de fendant iu error, to show cause, if any there be, why the judg rendered against the said plaintiffs in error as in the said writ error mentioned, should not be corrected, and why speedy j should not be done to the parties in that behalf. Witness, the Honorable Seth Shepard, Chief Justice of the of Appeals of the District of Columbia, this 14th day of June, in year of our Lord one thousand nine hundred and five. r SETH SHEPARD, Chief Justice of the Court of Appeals of the ; District of Columbia, Service accepted Juno 14, 1905. \ JOHN M. COIT, Counsel for Defendant in Error, — [ Endorsed :] Court of Appeals, District of Columbia, Filed Jun 14 1905 Henry W. Hodges, clerk. Court of Appeals of the District of Columbia. I, Henry W. Hodges, clerk of the Court of Appeals of the District of Columbia, do hereby certify that the foregoing printed and type. written pages numbered from 1 to 38, inclusive, contain a true } of the transcript of record and proceedings of said Court of Ap ‘ in the case of Frederick I. Allen, Commissioner of Patents, appek lant, vs. The United States of America ex relatione George A. Lo and Planters Compress Company, No. 1521, April term, 1905, as the same remain upon the files and records of said Court of Appeals. In testimony whereof I hereunto sub Seal Court of Appeals, scribe my name and affix the seal of said District of Columbia. Court of Appeals, at the city of Washing: | ton, this 16th day of June, A. D. 1905. — HENRY W. HODGES, Clerk of the Court of Appeals of the District of Columbia. Endorsed on cover: File No. 19,813. District of Columbia Court of Appeals. Term No. 311. The United States ez rel. George A. Lowry and Planters Compress Company, plaintiffs in error, Frederick I. Allen, Commissioner of Patents. Filed June 23d, 1905. File No. 19,813. FILE COPY. Oe” ee - — oe on" Supreme Court of the United States FILED OCT 10 1906 Docket No. 56. ree. ita JANG DL Nok WTR, TILE. UNITED STATES ex. Relatione GEORGE A. LOWRY and PLANTERS COMPRESS COMPANY. Plaintiffs in Error. Va. FREDERICK L ALLEN, Commissioner of Patents. Defendant in Error. In Error to the Court of Appeals of the District of Columbia. BRIEF FOR THE PLAINTIFFS IN ERROR. Oliver Mitchell, Edmund Wetmore, Of Counsel. Printed by Library Bureau, Keston Supreme Court of the United States OCTOBER TERM, 1906. ————— Docket No. 56. a THE UNITED STATES ex Relatione GEORGE A. LOWRY and PLANTERS COMPRESS COMPANY Plaintiffs in Error. vs. FREDERICK IL. ALLEN, Commissioner of Patents. In Error to the Court of Appeals of the District of Columbia. BRIEF FOR THE PLAINTIFFS IN ERROR. The Case Stated. This case comes to this court upon writ of error to the Court of Appeals of the District of Columbia. The Petition (Record, p. 2) shows that this case arises out of an interference in the United States Pat- ent Office between an application of William L. Spoon for a patent for a Cotton Bale, filed Sept. 10, 1901, and the Letters Patent of George A. Lowry (assignor to the Planters Compress Company) for a Cotton Bale, dated Nov. 6, 1900, and filed Jan. 29, 1897. The Lowry-Spoon interference was declared in the United States Patent Office at the request of Spoon ee ae 2 and the petitioner Lowry was, by the authorities of the Patent Office, made a party to the interference. Lowry moved to dissolve the interference upon the several grounds mentioned in Rule 122 of the Rules of Practice in the Patent Office (Record, p. 2; IV; p 12, 4), which are as follows:—* (a) That no interference in fact exists; (b [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0115%3A1. Public record. Not legal advice.