DOOLITTLE, Acting Commissioner: The claim, which alone constitutes the subject of this appeal, is as follows: In a convertible chair and carriage, in combination with the adjustable legs, wheels permanently attached thereto on fixed axles, so as to restrict the motion normally to right lines, substantially as set forth. The language of this claim is ambiguous. It conveys the idea that the wheels are permanently attached to the legs, as in ordinary chairs, in which the wheels are fixed directly to the bottom of the legs; but this is not the case here. The wheels are not attached to the legs, but are entirely independent thereof, and are attached alone to the fixed axles. The only reference cited as answer to this claim is the patent to Benjamin F. Hays, dated December 17, 1834. As the Board of Exami ners-in-Chief remark, the reference shows wheels on fixed axles, so as to normally give right-line motions, as a carriage. The legs, however, in the reference are not adjustable. A claim for the convertible chair and carriage described, provided with adjustable legs, would not be met by the patent cited; but how is the adjustability of the legs affected by the wheels? Clearly not at all; and wheels of this kind having been attached to stationary legs, what invention is exercised in putting the same wheels on adjustable legs! In a combination, the elements composing the same should co-operate to produce a common result; but there is no co-operation between the wheel in this case and the chair leg. As stated at the beginning, the wheels are not attached to the legs, but are hung on axles, and are independent of the legs, both in location and action, and in no way affect their adjustment. There is also some ambiguity in the description about the adjustment (such adjustment being had to make the base wider or narrower by expanding and contracting), the position being determined by stops. Only two stops are shown and described, and the original patent says nothing about expanding or contracting the base to suit the position of the occupant; and the present application does not clearly set forth what is meant by the base, nor is the operation of expansion or contraction clearly described. It appears now that all this is an interpolation of new matter. In the present condition of the case, the decision of the Board of Examiners-in-Chief is affirmed. EX PARTE BENSON. Lecided January 27, 1879. 15 O. G., 512. 1. Applicant having claimed an article of manufacture without describing or referring to any mode by which it could be made, and his claim for the article having been rejected, he was permitted to describe and claim a particular mode of producing said article, in view of the requirements of section 4888 Revised Statutes. 2. In accordance with said section, the applicant should have been required in the first place to describe or point out some means of producing the article. 3, The amendment in which he now sets forth the method must be accompanied by the supplemental oath required by Office Rule 11. APPEAL from Primary Examiner. ORNAMENTAL FACINGS FOR TIN AND OTHER FOILS. APPLICATION of Samuel & Henry K. Benson filed October 28, 1878. Mr. T. J. W. Robertson for appellant. DOOLITTLE, Acting Commissioner: Section 4888 is mandatory in requiring an applicant to set forth in his application a description of his invention in such full, clear, concise, and exact terms as to enable any person skilled in the art or science to which it appertains, or with which it is most nearly connected, to make, construct, compound, and use the same. With this requirement the applicant in this case did not comply in his specification as originally filed, nor did the Examiner require him to amend his case for that purpose; but finding, as he believed, the article described in an English patent, the Examiner rejected the claim for the article, without regard to the method of its production. Applicant now seeks to show how his article is produced, and to claim that method. Believing it would be the better practice in all such cases as the present one, where an applicant sets forth that he has made a new and useful article of manufacture, that he should be compelled to describe either a particular mode of producing it or that he should state that it is produced by some well-known method, which he specifies, I think that the omission of this requirement on the part of the Office, as respects this application, should now be supplied; but applicant should attach to his amendment "A," in which he sets forth the new method and the claim for the same, the supplemental oath required by Office Rule 11. EX PARTE SARGENT. Decided January 30, 1879. When a particular device is especially and peculiarly adapted for use in a machine, and contributes to the successful operation of that machine, a division should not be required for the purpose of making such element the subject of a separate application. APPEAL from Primary Examiner. WOOL-WASHING MACHINES. APPLICATION of Frederick G. Sargent filed August 28, 1878. DOOLITTLE, Acting Commissioner: Applicant states that the "apron," which is the subject of the disputed claim, is especially and peculiarly adapted for use in a wool-washing machine, and is by no means adapted for general use, as is the Sargent belt already patented. The Examiner does not expressly deny this. If he can cite other than wool-washing machines in which this "apron" can be used in its present form, I would be inclined to agree with him that a division should be required, and the claim for the device be sent to the class of belting. But the fact that a feature of a machine can perform its particular function in another machine is not always the test for requiring a division. If it were, the carriers, rollers, and levers in this application should each be made the subject of a separate application. Is the particular feature a part of, and especially adapted to, the machine in which it is claimed, and does it contribute to the successful operation of that machine? is the proper question to be asked. If so, there is no good reason why such an element should be stricken out of an application, and Rule 15 expressly provides that it need not be. With my present information the examiner's action is reversed. JOSSELYN . SWEZEY ET AL. Decided February 1, 1879. 15 O. G., 702. 1. Where a party moving to reopen an interference on the ground of newly-discovered testimony had been put on inquiry by the testimony already taken as to the alleged matter and as to the new witnesses, and it not being shown that he could not have then procured such testimony, motion denied. 2. When it appears that the newly discovered testimony cannot materially change the result it will not justify the reopening of the case. 3. The declarations or admissions of the owner of personal property are not admissible against a subsequent owner of the same, except where there is identity of interest between the assignor and assignee, which relation exists when the rights of the assignor continne and are represented by the assignee. APPEAL from the Primary Examiner. INTERFERENCE-Motion for rehearing. TRADE-MARK. TRADE-MARK of Francis R. Josselyn registered April 28, 1874, No. 1,758; application of Swezey & Dart filed July 5, 1878. Mr. W. B. Hornblower for Josselyn. Mr. Edward K. Jones for Swezey & Dart. DOOLITTLE, Acting Commissioner : Motion was made in behalf of Swezey & Dart in the above-entitled case, after the testimony on both sides had been taken, to reopen the case to introduce certain alleged newly-discovered testimony relating to certain admissions made by Josselyn in favor of D. Warner & Co., the assignees of Swezey & Dart, to the effect that the trade-mark now in controversy was the property by right of the said D. Warner & Co. Josselyn assigned this trade-mark to the firm of E. W. Holbrook & Co., of New York City, June 4, 1874, who are the present owners. The objections urged to this are that Josselyn is now deceased, that his interest in the trade-mark passed from him before his death, and that his admissions or declarations are not, as a matter of law, competent as against his assignees; also, that the part of the testimony to be taken could have been procured during the time allotted for the taking of the testimony on the part of Swezey & Dart. Waiving all consideration of the question as to the admissibility of the evidence proposed to be adduced by two of the witnesses named in the motion, George Warner and Frank Thompson, it is sufficient to say that Joseph Dart, one of the firm constituting the present moving party, testified on cross-examination that these witnesses were present at the interview at which it is now alleged the admissions of Josselyn were made. It is thus shown that they were known to Swezey & Dart. The latter were put on inquiry as to what they might have testified to, and it is not shown that their testimony could not have been procured. In view of these facts the case cannot be reopened to receive the proposed testimony. Hilliard on New Trials, pages 375 to 377. As to the testimony of Adams, although not an entire stranger to the record in this case, yet admitting that what he proposes to testify to could not have been previously ascertained, yet it does not appear that his testimony, if admitted, can materially affect the result of this interference, and this it should do to justify a reopening of the same. Hilliard, supra. It is alleged, in substance, that Josselyn admitted to Adams that the trade mark in dispute was the property of Warner & Co. From all that appears to the contrary, Adams was not a party to the transactions between Warner & Co. and Josselyn; he did not communicate this admission to Warner & Co.; and the latter firm, the assignors of Swezey & Dart, were not, therefore, influenced one way or the other by such alleged admission, nor were they or their assignees induced in any way to act upon such alleged admissions made to a third party. Again, that both Josselyn and Warner & Co. knew that the trademark in question belonged to Warner & Co., and acted upon that belief, was alleged in the preliminary statement of Swezey & Dart and in the testimony already adduced in their behalf. The testimony of Adams, therefore, would be simply cumulative. Also, that declarations or admissions of the owner of personal property are inadmissible against a subsequent owner of the same appears to be clearly established by the decision of the United States Supreme Court in the case of Dodge v. Freedmen's Saving and Trust Co. (93 U. S. R., 379). In the case of Paige v. Cagwin (7 Hill, 361), cited and approved in the decision referred to, it is held that where the rule of the admissibility of declarations of an assignor against his assignee is applicable, there must be an "identity of interest" between the assignor and assignee, and that such relation is based on the fact that the rights of the assignor continue and are represented by the assignee. The assignees of Josselyn are the real and only parties to the property transferred. They are not suing in behalf of Josselyn's estate, and their title does not depend necessarily on the validity of his title. For these reasons the motion to reopen to admit Adams's testimony must also be denied. The decision of the Examiner is reversed. WILD. SMITH. Decided February 3, 1879. 15 O. G., 513. 1. A claim for a journal-stud for a balance-wheel, "one end of which serves as a stem for ready connection with a machine whose opposite end is covered with a conical-shaped bearing forming a head, the latter being adapted to approach a similar cone adjacent to said stem, said cone being rigidly held from revolving or yielding when said journal is fixed in position, substantially as set forth," is substantially equivalent to a claim for "the combination with a journal-stud provided with a stem adapted for ready connection with a machine or stand, and a fixed shoulder provided with a conical-shaped bearing-surface, of an adjustable cone whose position is defined and secured by means of a screw, substantially as and for the purpose set forth. 2. The only difference between the device covered by this claim and the thread-tension device shown in figure 7, plate 2, pages 96 and 97, of Rudolph Hertzberg's "Die Nähmaschine," published at Berlin in 1863, consists in the introduction into the German device of an india-rubber collar, which is wanting in this invention, and the substitution in this invention of a screw entering the end of the journalstud in place of the screw-nut inclosing the end of the journal-stud, shown in the German book. These are not substantial differences. 3. The object of this invention is to secure steadiness and regularity of movement in the machine to which the balance-wheel is attached, while that of the German device is to attain in the sewing-machine a more accurate and delicate control of the friction of the spool-sleeve against the collars between which it revolves. These two uses of substantially similar devices are not analogous in the sense of the law, and the invention described in the claim is not anticipated by the German device. 4. There is no difference between this invention and that disclosed in Winter's English patent of 1865, except, first, that in the English device the conical bearing next to the screw is kept in place by a set-screw, instead of being immovably attached to the journal; second, that the other conical bearing, instead of being moved |