different conclusions. If the jury took this view of the case, and found that the accident was due to defendant's negligence, arising from the failure of the elevator boy to use the emergency brake, it disposes of the question of proximate cause. It matters not what may have occurred up to the point when the deceased fell. If, at that moment, by the exercise of reasonable care in the use of the means at hand, defendant's agent could have averted the accident, and failed to do so, the failure became the immediate and proximate cause of the accident. The judgment is affirmed, with costs, and it is so ordered.

A writ of error to the Supreme Court of the United States was allowed on application of the appellant.

MANLY v. WILLIAMS.

PATENTS; INTERFERENCE; AMENDMENTS; REISSUES; APPEAL AND ERROR.

1. Amendments of an application for a patent will only be permitted to relate back to the date of the filing of the original application, where they can clearly be sustained on the claims and specifications as originally made.

2. A patentee cannot, in a reissue application, so broaden his claims as to include an invention made subsequent to the grant of his patent.

3. On an appeal from a decision of the Commissioner in an interference case, finding that a delay by the senior party of more than two years in adding to the original claims of his application, those of the junior party's patent, did not estop the senior party from making such additional claims, and awarding priority to him, it is competent for the junior party to raise in this court the question whether the claims in interference show the same invention as that shown by the senior party's original claims, where it appears that the junior party moved to dissolve before the Examiner of Interferences upon the ground, among others, that the senior party had no right to make the claims of the issue. (Distinguishing Cutler v. Leonard, 31 App. D. C. 297, and Lecroix v. Tyberg, 33 App. D. C. 586.)

4. In an interference proceeding involving an invention of variable-speed geals operated in oil, between a patentee to whom a patent had been inadvertently granted and who was the junior party, and a prior applicant, who, at the suggestion of the Primary Examiner, and about two years thereafter, added to the claims of his original application those of the junior party's patent, it was held, on a review of the record, that the senior party had no right to make the claims of the issue, in that, in his original specification and amendments, up to the time the junior party entered the field, he had failed to make any claim for collecting or conserving the leakage of oil necessary in the operation of the device, which was one of the elements of the issue, but had provided against leakage by replenishing the supply of oil.

No. 696. Patent Appeals. Submitted March 14, 1911. Decided May 1,

1911.

HEARING on an appeal from a decision of the Commissioner of Patents in an interference case. Reversed.

The facts are stated in the opinion.

Mr. Charles Neave for the appellant.

Mr. Arthur v. Briesen and Mr. Hans v. Briesen for the appellee.

Mr. Justice VAN ORSDEL delivered the opinion of the Court:

Appellant, Charles M. Manly, appeals from the decision of the Commissioner of Patents, awarding priority of invention to appellee, Harvey D. Williams, the senior party. The issue is concisely stated by the Examiner of Interferences, as follows: "This case is here for final decision upon the question of priority of invention. Manly is the holder of a patent for the invention in issue. This patent issued, however, on an application filed after the filing of Williams's application. The issue of Manly's patent was therefore presumably inadvertent. Manly, in his preliminary statement, failed to allege dates of invention prior to Williams's filing date. He was therefore

required to show cause why judgment should not be entered against him. In response to that order, he had the case set down for final hearing upon the application records. He contends that these show that Williams is estopped from asserting any claim to priority of invention upon his application, and that, for such reason, Manly must be adjudged the prior inventor."

It appears that shortly after the issue of the patent to appellant, the Primary Examiner notified appellee, in case he desired an interference, to make the claims of the patent now in issue. Some months thereafter appellee took action upon his application, declining, however, to make the claims. More than two years after the date, when the claims were suggested to appellee, he tendered them, and this interference was declared.

The claims in issue are as follows:

"1. In a variable-speed gear, the combination with a pump. and a motor having a fluid connection between them, means for collecting leakage of an auxiliary pump adapted to return to the fluid connection such leakage, substantially as described.

"2. In a variable-speed gear, the combination with a pump and a motor having a fluid connection between them, of a pump automatically operating to return to the fluid connection any leakage therefrom, substantially as described."

The principal point relied upon by appellant in the Patent Office, which was sustained by the Examiner of Interferences, but denied by the Board of Examiners-in-Chief and the Commissioner, is that appellee's deliberate delay of more than two years in offering these claims operated as an estoppel, and is sufficient to support a judgment of priority in favor of appellant. An additional ground is advanced by counsel for appellant in this court. It is insisted that, inasmuch as appellee seeks to adopt the claims in issue and have them relate back to the date of his original application, before he is entitled to adopt the claims, it must clearly appear that the invention in issue was set forth in his original application. It is vigorously

argued that this does not appear from the original specifications and claims of appellee.

This appeal, we think, can be disposed of upon the latter point. The general invention common to both parties relates to a "variable-speed gear," which is a device by which two shafts may be geared together so that one will operate the other in such a manner that both will revolve at the same rate of speed. It involves in its organization the use of fluid, preferably oil, which is operated upon by a pump, and which in turn operates a motor, so that the fluid forms a connection between the pump and the motor, the successful operation of which depends upon maintaining at all times a uniform amount of fluid in the fluid connection.

It is conceded that considerable leakage occurs in the operation. It follows that, unless this leakage can all be conserved, the original supply must be replenished from time to time. Oil will be thrown out by the rapidly revolving shafts and the operation of the machinery. To collect this leakage, appellant surrounded the machine with a tight tubular casing which does not permit the leaking oil to escape, but returns it to the pump, to be again used in the fluid connection. Appellant, in his specifications in which the claims in controversy originated, describing his apparatus, states: "It is furthermore evident that should any leakage occur around the pistons of the pump and motor, or their respective piston valves, such leakage will finally settle to the lower portion of the inclosing casings, and I have provided for returning this fluid to the reservoir, and from this to the fluid connection."

Appellee's device shows a casing only about the lower portion of the machine. In the bottom of this casing a reservoir is provided from which the oil is pumped into the fluid connection. The portion of the leakage caught by this partial casing is returned to the tank, but it is clearly apparent that in this device a large part of the leakage is lost. It was to obviate this difficulty that the Examiner suggested to appellee the claims in issue, which were copied from appellant's original application. An examination of appellee's claims, specifications, and draw

Opinion of the Court.

[37 App. ings, we think, discloses no conception by him of the exact thing here in issue. In his original specifications he describes this feature of his invention as an "apparatus mounted upon a frame or stand 1, which, in this case, is preferably in the nature of an open box having a tight bottom which will catch and carry oil or other medium which may be employed to charge the apparatus. At the bottom, in the center, is a sink 75, which serves as a settling basin, and into which the suction plug 10 of the replenishing tank projects."

He further describes it as follows: "In practice the piston chambers of the pump cylinders, the port channels, and the perts are filled with the circulating medium, which preferably is a lubricant, and for convenience will hereafter be called an 'oil. As, under certain conditions, this oil is driven around the circulatory track under enormous pressure, there is liable to be some loss from leakage, which, in a short period of operation, would exhaust the apparatus unless such waste be replenished as fast as it occurs. For this purpose a special pumping apparatus is provided which draws from a supply of oil carried in a well or reservoir 75, beneath the machine. The oil so drawn from this reservoir is automatically gauged to accurately supply for the depletion as it occurs, so that no more than is requisite for that purpose will be taken up or injected."

Again it is described as follows: "On the exhaust side the oil is returned by the action of the pistons connected with the driven mechanism, but, as some degree of leakage of the oil in transmission may exist, it is apparent that the return current from the exhaust port will not be sufficient to keep the pitman heads in close connection in their sockets, as the pistons on the receiving end of the exhaust side might not make a full stroke on account of leakage on that side of the machine. Hence the replenishing pump is provided to force oil into the exhaust port, so as to keep the system full, and also to establish therein a pressure sufficiently above the normal to force the pistons of the driving and driven ends apart, and thereby seat the terminals of the pitmen in their respective sockets in the piston and socket rings."