withstanding his long inaction, the first to bring the invention before the public by making application for the patent. Had Brune, during Dieckmann's inaction, brought the machines before the public, or filed his application for patent, he would clearly have been entitled to the award. On the other hand, Dieckmann had the right to awake from his long slumber, and when he did so, and filed his application, he became entitled to the benefit of his earlier conception, save as against a bona fide inventor who in the meantime may have given the invention to the public. By his careful concealment of the invention for more than two years after making it, Brune would have lost his right to a subsequent inventor who might have given it to the public during the period of concealment. For the same, if not a stronger reason, he should lose it to one who first conceived it, and, resuming diligence, gave it to the public during the same period. A decision of the court of appeals of the seventh circuit, strongly relied on in behalf of Brune's contention, appears to us to directly support the position of Dieckmann. International Teleph. Mfg. Co. v. Kellogg Switch Board & Supply Co. 96 C. C. A. 395, 171 Fed. 651-656. The suit was for an infringement of a patent to one Dean. Several questions were raised on behalf of the infringer, including the one herein discussed.

. Dean conceived the invention in 1895, and made a device, which he did not give to the public until he filed his application in March, 1901, upon which the patent issued in November. McCormick conceived the invention in September, 1900, and made a transmitter in the same month, which embodied the invention. But he did not put it upon the market until after Dean had applied for a patent and placed his transmitter upon the market. The court held that Dean was entitled to his patent. It was said by Judge Baker, who delivered the opinion of an unanimous court: "If, during Dean's suspension of activities, McCormick had either patented the device, or brought it into public use without a patent, the public would have been indebted to McCormick for benefits conferred, and Dean might well be held estopped by his delay from claiming the public

Syllabus.

[37 App. grant; but in our judgment neither reason nor authority sanetions an estoppel against the first and true inventor, unless the later comer has cut in between, and made the public his debtor by being the first to get to the Patent Office or the market."

In Burson v. Vogel, 29 App. D. C. 388, it did not appear that the first to conceive "suppressed or intended to conceal knowledge of his invention after its reduction to practice." It is therefore not an authority in support of the decision of the Commissioner, notwithstanding some general expressions that may seem to conflict, to some extent, with the decision now made in regard to the use of the machine of Brune in the factory. The facts of the two cases on this point are quite different.

Believing that there was error in the decision awarding priority to Brune, it will be reversed. It is so ordered, and that this decision be certified to the Commissioner of Patents, as the law requires. Reversed.

A petition for a rehearing was denied October 5, 1911.

IN RE MATTULATH.

COURTS; APPEAL AND ERROR; COMMISSIONER OF PATENTS; POOR PERSONS.

1. This court, although a court of the United States, is not, strictly speaking, a circuit court of appeals, notwithstanding its functions are analogous by reason of its being an intermediate court of appeals between the District of Columbia courts of original jurisdiction and the Supreme Court of the United States.

2. In the exercise of his functions, the decisions of the Commissioner of Patents in the matter of applications for patents and interferences between applicants affect private as well as public interests. In such decisions, he exercises a function judicial in its nature, and for that reason statutes authorizing appeal therefrom to the courts are within the power of Congress. (Citing United States ex rel. Bernardin ▼. Seymour, 10 App. D. C. 294.)

3. The act of Congress of June 25, 1910 (36 Stat. at L. 866, chap. 435), amending sec. 1 of the act of Congress of July 20, 1892 (27 Stat. at L. 252, chap. 209, U. S. Comp. Stat. 1901, p. 706), and allowing appeals and writs of error from United States courts to circuit courts of appeal to be prosecuted in forma pauperis upon certain conditions therein prescribed, does not apply to an appeal to this court from a decision of the Commissioner of Patents in an interference proceeding; and a motion to so prosecute such an appeal will be denied. (Citing McGrane v. McCann, 2 App. D. C. 221.)

No. 751. Patent Appeals. Submitted October 25, 1911. Decided October 25, 1911.

HEARING on a motion by the appellant for an order permitting her to prosecute an appeal from a decision of the Commissioner of Patents in an interference case in forma pauperis.

The facts are stated in the opinion.

Mr. W. H. Swenarton for the motion.

Mr. W. S. Ruckman opposed.

Denied.

Mr. Chief Justice SHEPARD delivered the opinion of the Court:

This is an appeal from the decision of the Commissioner of Patents denying an application for a patent for an improvement in flying machines, filed by Hugo Mattulath, and prosecuted after his decease by his administratrix.

Having filed the transcript of the record in this court, the appellant has entered a motion for an order permitting her to prosecute said appeal without being required to prepay fees or costs or for the printing of the record. The application is founded on an act of Congress approved June 25th, 1910 [36 Stat. at L. 866, chap. 435], amending sec. 1 of an act entitled, "An Act Providing When Plaintiff May Sue as a Poor Person, and When Counsel Shall Be Assigned by the Court," approved

July 20, 1892 (27 Stat. at L. p. 252, chap. 209, U. S. Comp. Stat. 1901, p. 706). The amended section reads as follows:

"That any citizen of the United States entitled to commence or defend any suit or action, civil or criminal, in any court of the United States, may, upon the order of the court, commence and prosecute or defend to conclusion any suit or action, or a writ of error, or an appeal to the circuit court of appeals, or to the Supreme Court, in such suit or action, including all appellate proceedings, unless the trial court shall certify in writing that in the opinion of the court such appeal or writ of error is not taken in good faith, without being required to prepay fees or costs or for the printing of the record in the appellate court, or give security therefor, before or after bringing suit or action, or upon suing out a writ of error or appealing, upon filing in said court a statement under oath in writing that because of his poverty he is unable to pay the costs of said suit or action, or of such writ of error or appeal, or to give security for the same, and that he believes that he is entitled to the redress he seeks by such suit or action, or writ of error or appeal, and setting forth briefly the nature of his alleged cause of action or appeal."

The affidavit conforms to the requirement of the section, save that it omits to state that the applicant is a citizen of the United States. Assuming that she is a citizen of the United States, and that fact may be shown by an additional affidavit, the motion will be considered as if amended so as to supply the omission. The court of appeals of the District of Columbia is not expressly named in the section quoted. Though a court of the United States, it is not, strictly speaking, a circuit court of appeals, notwithstanding its functions are analogous by reason of its being an intermediate court of appeals between the District of Columbia courts of original jurisdiction and the Supreme Court of the United States.

Assuming, but without now deciding, that appellate proceedings in this court are within the comprehension of this section, we are of the opinion that it has no application to the appellate proceeding in this case. The language of the section limits its

application to suits or actions commenced in any court of the United States, and extends it to writs of error and appeals "in such suit or action." The Patent Office is an important executive department. In the exercise of his functions, the decisions of the Commissioner of Patents, in the matter of applications for patents and interferences between applicants, affect private as well as public interests. In such decisions he exercises a function judicial in its nature, and for that reason statutes authorizing an appeal therefrom to the courts have been held to be within the power of Congress. United States ex rel. Bernardin v. Seymour, 10 App. D. C. 294-307; United States v. Duell, 172 U. S. 576. But the Patent Office is not, and cannot be converted into, a court of the United States.

The former section reads substantially as does this in regard to actions commenced in courts of the United States, and it has heretofore been interpreted by this court as applying only to suits or actions commenced in such courts. McGrane v. McCann, 2 App. D. C. 221. In that case a motion to proceed in forma pauperis in an appeal from a decision of the probate court was denied. In delivering the opinion of the court, Chief Justice Alvey said: "This proceeding originated in a probate court, and is a probate proceeding, and is not a suit or action commenced in a court of the United States within the meaning of that statute. *The statute does not contemplate proceedings in a probate court; nor does it contemplate proceedings in an appellate court."

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The purpose of the amendment was to extend its benefits to proceedings in appellate courts. It made no change in its limitation to suits or actions commenced in courts of the United States save to extend it expressly to criminal actions.

It is not perceived how this proceeding can be deemed a suit or action any more than a proceeding instituted in a probate court may be so considered. See McGrane v. McCann, supra. But if regarded as a suit or action, it was not commenced in a court of the United States, and for that reason, if for no other, it is not within the operation of the section of the statute as amended. The motion is denied.