As seen, no reference is made to the progressive augmentation of temperature in the various superheaters. All that is required is that the temperature of the steam as it enters one superheater is to be the same as when it enters the next, and its temperature when it leaves that superheater the same as when it leaves the next. This is obviously not the invention in issue.

Since the invention in issue is not disclosed in de Ferranti's British patent, it is not necessary to consider whether it is disclosed in the application involved in this interference, since the application of which this is a division was not filed until after the application of Lindmark.

The decision of the Examiners-in-Chief is reversed and priority of invention is awarded to Tore G. E. Lindmark.

EX PARTE ELLIS.

Decided July 20, 1911.

171 O. G., 217.

APPLICATION-PROSECUTION-ENTRY OF CLAIMS AFTER DECISION OF EXAMINERS

IN-CHIEF.

Where during the prosecution of an application certain claims were canceled the fact that the Examiners-in-Chief reversed the action of the Primary Examiner on narrower claims affords no ground for permitting the entry of claims substantially the same in scope as the claims previously canceled.

ON PETITION.

REST AND LIFTING-LEVER.

Messrs. Arthur C. Fraser & Usina and Messrs. Fraser, Turk & Myers for the applicant.

TENNANT, Assistant Commissioner:

This is a petition that the Examiner be authorized to admit an amendment filed May 12, 1911, and to consider the claims presented therein.

The record shows that claims 6, 7, 8, 9, and 11 of this application were finally rejected by the Examiner on May 14, 1910. On October 18, 1910, the applicant presented an amendment directing the addition of certain claims, numbered 12 to 16, inclusive. The Examiner refused to enter these claims, upon the ground that they were not offered under the provisions of Rule 68 as substitutes for the rejected claims to put them in better condition for appeal, but are merely additional claims. The applicant appealed to the Examiners-inChief on January 12, 1911, and at the hearing of that appeal presented in a supplemental brief five claims which differed both in language and scope from the claims which he had requested the Ex

aminer to enter previously to the appeal and requested the Examinersin-Chief to recommend the allowance of these newly-presented claims. The Examiners-in-Chief reversed the decision of the Examiner upon the claims pending before them on appeal, but made the following statement in respect to the remaining claims:

In view of the fact that the appealed claims are deemed allowable, no occasion arises for considering the proposed claims appended to the end of applicant's brief, and said claims have not been considered.

After the case was returned to the Primary Examiner an amendment was offered requesting. the entry of six additional claims, numbered 12 to 17, upon the ground that these claims were in accordance with the ruling of the decision of the Examiners-in-Chief.

The Examiner refused to enter this amendment, upon the ground that the Examiners-in-Chief had made no such recommendation under the provisions of Rule 139.

I find no sufficient reason for now reopening the case as requested by the applicant. Ample opportunity was given during the prosecution of the case for the presentation of such claims as now offered, and the record shows that claims of substantially the same scope as the broader claims now presented were canceled in view of a rejection of the Examiner prior to the date upon which appeal was taken. An applicant cannot be permitted to prosecute his case piecemeal.

There is in my opinion at the present time a needless multiplicity of claims in this case, and the addition of the claims presented is wholly unwarranted.

The petition is denied.

EX PARTE EYTON.

Decided August 8, 1911.

171 O. G., 481.

ASSIGNMENT BY TRUSTEE IN BANKRUPTCY-RECORDING-ISSUANCE OF PATENT. An assignment purporting to be by the trustee in bankruptcy of the applicant will be recorded; but the patent will not be issued in accordance with the request contained therein.

ON PETITION.

SPRING-WHEEL FOR MOTOR AND OTHER ROAD-VEHICLES.

Mr. William P. Thompson and Messrs. Alexander & Dowell for the applicant.

MOORE, Commissioner:

This is a petition that—

the papers filed by us April 29th, 1911, to wit,-"Order of adjudication in the matter of Adam Tudor Eyton," a bankrupt; a certified copy of "Resolutions

where adjudication resolved on;" and an "Assignment from Llewellyn HughJones to the Eyton Wheel Limited" be recorded and that the patent when granted be issued to the Eyton Wheel Limited, as per assignment.

Following the presentation of the above-mentioned papers for record in the assignment records of this Office petitioner was informed in the Office letter of May 1, 1911, that—

a trustee in bankruptcy is not vested with the title to pending applications, and consequently cannot legally transfer same. (See decision in re Dann, 129 Fed. Rep., 495.)

The papers presented by you are therefore withheld from record affording you an opportunity of recording in this Office an assignment directly from the bankrupt to either the official receiver in bankruptcy, or to the company, which assignment should contain a request to issue the patent to the assignee, as is required by Rule 26.

The present petition was taken from the above action.

The first of the above-mentioned papers purports to be an order of the court dated April 26, 1910, adjudging A. Tudor Eyton to be a bankrupt. The second paper purports to be a certified copy of the minutes of proceedings had at the first meeting of the creditors, at which it was unanimously resolved that—

Adam Tudor Eyton shall be adjudged bankrupt and that the official receiver will apply to the court to make adjudication.

The third paper above menitoned purports to be an assignment by Llewellyn Hugh-Jones, as official receiver in bankruptcy and trustee of the estate of said Adam Tudor Eyton, of an application pending in this Office, filed by the said Eyton on December 4, 1909, to the "Eyton Wheel Limited " and requesting the Commissioner of Patents to issue Letters Patent to said company.

Petitioner states that it is desired to have said documents recorded in order to give notice of their contents and to prevent the applicant from selling his applicaion to third parties.

There appears to be no reason why said documents should not be recorded for this purpose, and it is noted that in the Office letter of May 1, 1911, petitioner was informed that the papers presented were merely withheld from record in order to permit the petitioner to take certain preliminary steps, if he so desired.

The petition in so far as it requests that said papers be recorded is accordingly granted.

The second portion of the petition requests that the patent when granted be issued to the assignee, as requested in the assignment. Where the applicant is a resident of this country, it is the practice of the Office, based upon the decisions of the courts (in re McDonald, 104 Fed. Rep., 239, and in re Dann, 129 Fed. Rep., 495) and the Commissioner's decision (ex parte McPherson, C. D., 1905, 232; 117

O. G., 275) to refuse to issue a patent to the assignee upon assignment by a trustee in bankruptcy, upon the ground that the trustee in bankruptcy is not vested with the title to pending applications, and consequenly cannot legally transfer the same.

It is contended by the petitioner, first, that the holding in the above-cited cases was overruled in the recent court decision in re Cantelo Mfg. Co., (185 Fed. Rep., 276,) and, second, that even if said holding was not so overruled it could not properly be held to control the assignment of an application by a British subject residing in Great Britain.

The second contention is well taken, and in view thereof it is unnecessary to discuss the first contention other than to note that said court decisions were all rendered by different United States district courts, courts of coördinate jurisdiction, and therefore the later decision does not necessarily overrule the former.

The contention of petitioner that the law in this country, whatever it may be, does not fix the status of a bankrupt British subject residing in Great Britain is undoubtedly correct. The question then naturally arises, what is the law regarding this matter in Great Britain? Petitioner states in his brief that the documents presented are in complete accordance with the laws in force in Great Britain and sufficient thereunder to transfer the legal and equitable title to the invention; also, that under the British law the applicant Eyton will not be allowed to do any business in his own name until such time as he has received his discharge from the official receiver in bankruptcy. It is noted that while petitioner states at length his opinion of the British law he has failed to cite or quote said law, much less to prove the same.

It is well established that judicial notice will not be taken of the laws of a foreign country. In Winter v. Latour (C. D., 1910, 408; 157 O. G., 209; 35 App. D. C., 415) the Court of Appeals of the District of Columbia said:

The provision of the French patent law in question was not offered in evidence and does not appear in the record. It is not, therefore, before us, and we will not take judicial cognizance of its provisions. In Liverpool Steam Co. v. Phenix Ins. Co. (129 U. S., 397) the Court stated the rule as follows:

"The rule that the courts of one country cannot take cognizance of the law of another without plea and proof has been constantly maintained, at law and in equity, in England and America. (Church v. Hubbart, 2 Cranch., 187, 236; Ennis v. Smith, 14 How., 400, 426, 427; Dainese v. Hale, 91 U. S., 13, 20, 21; Pierce v. Indseth, 106 U. S., 546; ex parte Cridland, 3 Ves. & B., 94, 99; Lloyd v. Guibert, L .R., 1 Q. B., 115, 129; S. C., 6 B. & S., 100, 142.)"

It has long been the practice in this Office where there are conflicting assignments or any question as to the legal title of the assignee to issue the patent in the name of the applicant. This practice was upheld by the Court of Appeals of the District of Columbia in the

2097°-12--10

case of Moore v. Boyer, (C. D., 1909, 276; 138 O. G., 530; 32 App. D. C., 243,) where the Court said:

It is well settled that it is purely discretionary with the Commissioner whether he shall issue the patent to the assignee or the patentee. As said by this court in a case where there were two assignments filed in the Patent Office: "Having determined that a patent should issue, it is conceded he might have ignored both assignments and issued a patent in the name of the inventor, which, probably, would have been the better course for him to have followed (In re Pearsall, C. D., 1908, 420; 135 O. G., 221; 31 App. D. C., 265.)"

Should the decree be affirmed and the Commissioner finally determine that patents should be issued upon the applications in this case, which yet remains to be decided, it is discretionary with him whether they shall be issued to the inventor Berger or to the assignee.

No damage can occur to the appellee as a result of the exercise of such discretion on the part of the Commissioner. Appellee is fully protected by his assignment. The patents are equally valid whether issued in the name of the applicant or the assignee, and, when issued, the title immediately vests, by operation of law, in the assignee. (Gaylor v. Wilder, 10 How., 477.)

To investigate the laws of various foreign countries in order to determine the titles to applications for patents pending in this Office filed by foreigners who have subsequently become bankrupt would place an enormous and unnecessary burden upon the Office. Since it is unquestionably proper to issue the patent in the name of the applicant, this is believed to be the safe rule in such cases. In the present instance petitioner has not shown that any hardship would result from following this plan.

The petition is granted in so far as it requests the recording of the documents presented and is denied in so far as it requests that the patent be issued to the "Eyton Wheel Limited."

EX PARTE SCHMIDT.

Decided August 9, 1911.

171 O. G., 482.

1. APPLICATION--PROSECUTION-FINAL REJECTION.

It is necessary in the prosecution of application for patent that the prosecution should at some time come to an end and that when an application has been fully considered and reached the state of final rejection further prosecution, except by appeal, be then closed, for an unlimited prosecution of an application necessarily prevents other applicants from having their applications examined in regular order.

2. SAME-SAME—SAME-ENTRY OF AMENDMENT THEREAFTER.

Under the provisions of Rule 68 an amendment touching the merits filed after final rejection may be admitted only upon a verified showing of reasons why it was not earlier presented; but no hard and fast rule can be laid down to define what constitutes a satisfactory showing in such a case.