the respective apparatus of the parties to this appeal in particular, the Board of Examiners-in-Chief said:

The invention involved in this interference is an apparatus adapted for use either as a lamp or as a rectifier for alternating currents. In order that such a device may be effective it has been found essential that the negative electrode be continually excited by the passage of a current and that if this current ceases for any reason the lamp is extinguished. There can be no question that both parties show such apparatus in which this condition of continuous excitation of the negative electrode is maintained, but the devices are specifically different. Each instrument contains a plurality of anodes and a single cathode, the latter coacting with each of the anodes. Weintraub has a source of alternating current connected between one anode and the cathode which furnishes the main current and an additional source of current, which is direct or continuous, connecting the other anode to the cathode, so that whatever the condition of the source of alternating current a direct current is constantly maintained. Hewitt on the other hand has each of his anodes connected to an individual or distinct coil of a polyphase generator of alternating current, the currents supplied to the several anodes being so related in phase that the impulses overlap; that is to say, conjointly they continually supply current to keep up the excitation of the cathode.

The claim here under consideration was first made by appellee and only presented by appellant on the suggestion of the Patent Office for the purposes of this interference. Hence, it must be given the meaning intended by the party with whom it originated and read in the light of his application. All of the tribunals of the Patent Office concurred in holding that the positive electrodes shown by appellee, each of which is

connected to an individual or distinct coil of a polyphase generator of alternating current,

constitute separate sources of current within the meaning of the term as used in the art. In Westinghouse Electric Mfg. Co. v. New England Granite Co. (110 Fed. Rep., 753) the Court, considering the question whether the different phases of a three-phase alternating current were "independent," said:

It is an evident fact that the defendant's circuits are operatively independent, and that, as the word "independent" is used by electricians, they are electrically independent. The word was used, as it was wont to be used by electricians, to mean independent in an electrical sense.

We see no reason, therefore, to disturb the unanimous decisions of the experts of the Patent Office on this point.

But it is contended by appellant that, if appellee is entitled to make this claim, the issue has different meanings when read on the two applications, and therefore no interference in fact exists. We are of the opinion that there is nothing in the prior art to warrant so narrow an interpretation. The object sought to be attained by the two inventions is the same-the continuous excitation of the negative electrode. It is true that, if the current through any one of the

anodes in appellee's apparatus should fail, the operation of the device would be discontinued; while, in appellant's device, if the alternating current is interrupted, and then renewed, the lamp will restart without assistance, provided the direct current remains constant. This, however, can have no effect on the right to the basic claim here sought. If appellant's device is an improvement on that of appellee, he is entitled to claim it specifically as such, but not broadly.

Appellant also assigns as error the refusal of the Commissioner to grant a motion to permit him to take the testimony of experts. We fail to see wherein appellant has been damaged by this action; for, so far as the record discloses, everything which he desired to prove has been admitted by appellee. This matter, however, was one entirely within the discretion of the Commissioner, and one which we cannot review on appeal. In Jones v. Starr, (C. D., 1905, 694; 117 O. G., 1495; 26 App. D. C., 64,) where testimony had been suppressed for irregularities in its taking, and a motion for leave to retake it had been denied, the Court said:

The grant or refusal of the motion was clearly within the lawful discretion of the Commissioner. It is not such a decision as we can review. As an interlocutory proceeding we would not review it, and it is not one which should be reviewed as necessary or proper in connection with the final decision of priority. (Westinghouse v. Duncan, C. D., 1894, 170; 66 O. G., 1009; 2 App. D. C., 131; Cross v. Phillips, C. D., 1899, 342; 87 O. G., 1399; 14 App. D. C., 228; Hulett v. Long, C. D., 1899, 446; 89 O. G., 1141; 15 App. D. C., 284; Allen v. United States of America ex rel Lowry et al., C. D., 1905, 643; 116 O. G., 2253; 26 App. D. C., 8..)

The decision of the Commissioner is therefore affirmed, and the clerk is directed to certify these proceedings, as by law required. Affirmed.

[Court of Appeals of the District of Columbia.]

ARBETTER V. LEWIS.

Decided March 1, 1910.

154 O. G., 516; 34 App. D. C., 491.

1. INTERFERENCE- -CLAIMS-CONSTRUCTION OF.

"A limitation in a claim that is merely arbitrary and without function ought not to be permitted to deprive the first inventor of reward simply because the one first to file an application has inserted it."

2. SAME-SAME-SAME.

Where in an interference involving a sewed seam the sole reason assigned for the limitation in the claim "under the edge" is concealment of one of the threads and neither seam accomplishes that result, Held that " the one in which such result is more nearly accomplished ought not to be put aside for the other."

Mr. Nathan Heard and Mr. Frederick P. Fish for the appellant. Mr. A. C. Fowler and Mr. E. E. Huffman for the appellee.

ROBB, J.:

This is an interference proceeding in which the three tribunals of the Patent Office have concurred in awarding priority of invention to Lewis, the senior party.

The case is peculiar in that it involves merely a seam or article of manufacture without reference to the method or process of such manufacture or the machine by the operation of which the article is produced. This fact should be kept in mind, for it has a material bearing, in our opinion, in the consideration of the issue which is expressed in the following counts:

1. A hem or seam for sewed articles, consisting of a main layer of textile or similar material and a superimposed layer of material having a turned-under edge and secured to said main layer by two connected rows of locked or enchained stitches entering and emerging at different points on the same side of the work, one of said rows entering under said edge, and said edge lying between the extremities of said stitches.

2. A hem or seam for sewed articles, consisting of a main layer of textile or similar material and a superimposed layer of material having a turned-under edge and secured to said main layer by two connected rows of locked or enchained stitches entering and emerging at different points on the same side of the goods, one of said rows entering under said edge, said edge lying between the extremities of said stitches, and one of said rows of stitches being inclined to the edge of said superimposed layers.

3. A hem or seam for sewed articles, consisting of a main layer of textile or similar material, and one or more superimposed layers of material secured to said main layer by two connected rows of locked or enchained stitches entering and emerging from different points on the same side of the work, one of said rows entering the main layer only and the other row entering under the edge of the superimposed layer or layers.

4. A hem or seam for sewed articles consisting of a main layer of textile or similar material, and a superimposed layer or layers secured to said main layer by two connected rows of locked or enchained stitches entering and emerging from different points on the same side of the work, one of said rows entering the main layer only, and the other of said rows entering under the edge of the superimposed layer or layers and piercing said layer or layers only.

The question of the patentability of these claims is not before us, the sole issue, as has been many times held, being priority of invention. Neither party has taken testimony on the question of priority, each relying upon patents on machines for the manufacture of their respective stitches. Arbetter's Patent No. 690,385 was granted January 7th, 1902, upon an application filed August 13th, 1901. Lewis's Patent No. 862,830 was granted August 6th, 1907, upon an application filed August 2, 1902, which, it will be observed, was almost one year after Arbetter's filing date. It is apparent, therefore, that if each of these patents constitutes a disclosure of the issue, priority of invention should be awarded Arbetter. We here reproduce Figure 8

from Arbetter's patent, upon which he bases his contention that said patent constitutes a disclosure of the issue herein:

We also reproduce Fig. 3 from Lewis's application herein, as an embodiment of his seam:

19

While the tribunals of the Patent Office, as above stated, were unanimously of the opinion that priority should be awarded Lewis, their views as to the proper interpretation of the issue and the patents upon which each party bases his claim to priority, were quite divergent. Ordinarily in a technical case like this, we accept the views of the expert tribunals of the Patent Office. Where, however, it is apparent that those tribunals are not in harmony upon controlling questions involved or where we are satisfied that an incorrect conclusion has been reached, we deem it our duty to consider the case afresh. We shall, therefore, in our effort to determine the exact nature of the invention in controversy, turn to Lewis's application herein, he being the senior party and the originator of these claims.

Upon the filing of his application, Lewis was notified by the Patent Office that his claims

fail to define anything patentable over the patent to Arbetter, 690,385, Jan. 7, 1902, Buttonhole (6), and are rejected thereon.

There was no claim in the original specification that this stitch resulted in the concealment of either the needle or the bobbin thread. Upon the rejection of his claims because they contained nothing patentable over Arbetter's patent, Lewis made no mention of the contention he now makes, but filed an affidavit under Rule 75 carrying his date of invention back of the date of the filing of the application upon which Arbetter's patent was granted. While this affidavit was found to be satisfactory, the claims were again rejected upon Lewis's British method patent, the Office holding that—

it is immaterial so far as the seam is concerned whether the needle-puncture is parallel with the hem or inclined relative thereto.

To meet this condition, Lewis filed a statement in which appeared the following:

By making the stitches inclined to the edge two very important advantages are gained. First, by so including the stitches, a very much greater width of overseaming is secured with the same lateral vibration of the needle.

In making this form of hem with the straight stitch there is great liability of pulling the woof from the warp or the warp from the woof, as the case may be, while with the inclined stitch the woof and warp are bound together, thus making a much more durable hem or seam.

Again his claims were rejected and again he filed amendments, which were in turn rejected. Thereupon, he sought to have his application amended so that it would contain a reference to the advantages of making the stitch inclined to the edge of the superimposed layer. This advantage consisted, it was contended, in a wider and stronger seam. Under the head of remarks, Lewis said:

The interlocking of the needle-thread of each of the stitches in one of the rows or series with the part of the bobbin-thread which lies in the preceding stitch, masses both the bobbin and needle thread upon the edge of the superimposed layer of material and thus makes a hem or seam, which both in appearance and in binding effect upon the edge is entirely different from anything shown in any of the references.

The amendment was incorporated by the Patent Office, but the claims were again rejected, the Office holding—

that the mere statement that the needle-thread engages a portion of the bobbinthread does not lend patentability to an otherwise old seam.

Thereupon, on July 5th, 1906, Lewis filed another amendment, and in the course of the accompanying remarks, said:

In connection with present claims 6, 7, and 8, it is to be noted that all of these claims contain a limitation which is absolutely novel, namely, that the needle-thread of each stitch is interlocked with the portion of the bobbin-thread lying in the preceding stitch. This construction enables the threads to be drawn into the fold between the main and superimposed layers, so as to make a much neater hem or seam than could be otherwise obtained, and by sufficient tension on the threads they may be drawn into the fold to such an extent that the stitches are substantially concealed on the wrong side of the hem or seam, as well as on the right side.

It is to be noted that Lewis in this statement does not contend that either thread would be entirely concealed. His contention is that by drawing the threads into the fold the stitches would be substantially concealed. After several other rejections the claims were finally held to be in form for allowance and this interference was thereupon declared.

The Examiner of Interferences ruled that the object of the limitation in the counts that one of the rows of stitches should enter under the edge of the superimposed layer of material "is the partial concealment of the stitch." He decided against Arbetter because

the point at which the needle emerges determines the point at which the thread carried by it will be locked by the bobbin-thread,