The Committee on Patents and the Patent Office, to whom was referred the petition of Horace L. Emery, of Albany, New York, praying that the Commissioner of Patents be authorized to hear and determine his applica tion for the extension of his letters-patent for an improvement in the endless railway horse-power, having considered the same, beg leave to submit the following report:

The petitioner, Horace L. Emery, of the city of Albany, and State of New York, obtained from the United States letters-patent for "improvements in the endless railway horse-power," dated February 22, 1852, which letters patent expired on the 22d of February, 1866, without hav ing been extended, as was the desire and intention of the petitioner The petitioner, as appears, made diligent efforts to introduce his inven tion into public use, and did so succeed to a large extent, yet without deriving adequate remuneration therefrom during the term of its issue. Desiring an extension for an additional term of seven years, in the month of June, 1865, or more than eight months prior to the expiration of the patent, the petitioner employed Messrs. Munn & Co., of New York City, to prepare the papers for such application. The necessary papers were accordingly prepared by these attorneys, and forwarded to petitioner at Albany, New York, where they were properly executed and acknowledged, and then returned to the said Munn & Co., New York City, who likewise acknowledged their reception in the said month of June, 1865, about eight months before the patent would expire. Relying upon his counsel to protect his interests, and believing he had fully complied with all the requirements in extension cases, the petitioner gave himself no further concern in the matter, until, two and a half months prior to the expiration of the said patent, he was informed by the aforesaid attorneys that nothing had been done by them to procure the extension, and that the papers had not been received back from the petitioner. The time for making application had then elapsed by fifteen or twenty days, and the petitioner was advised by his counsel to make application to Congress for permission to be heard before the Commissioner of Patents in the matter of his application for extension. The petitioner having thus failed, without fault of his own, to make his application to the Commissioner of Patents, applied to Congress for relief.

During the second session of the thirty-ninth Congress, a bill (H. R. 819) was passed by the House of Representatives authorizing the Commissioner

of Patents to receive applications from the petitioner and others named in the said bill, and to hear and determine such applications upon their respective merits in the same way as if the time for such respective applications had not elapsed." This bill, in due course of time, was referred to the Senate Committee on Patents, and it appears that after proper consideration thereof by said committee they instructed Mr. Grimes, then a member of that committee, to report back the bill without amendment, and recommend its passage.

Mr. Grimes then submitted the following report:

Upon the petitions of Richard A. Vervalen, Samuel Godfrey Reynolds, John L. White, and Horace L. Emery, respectively, praying for relief and for leave to apply to the Commissioner of Patents for an extension of their several patents, averring that they were prevented by mistake and accident from applying to the Commissioner within the time prescribed by the act of 1861, the committee report:

That all of said letters-patent were issued in the year 1852, at which time the law provided that application might be made for an extension to the Commissioner at any time not less than sixty days before the expiration of the patent, which continued in force till March, 1861, when an enactment was passed requiring that all such applications should be made at least ninety days before the expiration of the patent.

That the patent of said Richard A. Vervalen was issued for a valuable improvement in machines for making bricks, and expired on the 28th day of June last.

The patent of said Samuel Godfrey Reynolds was issued for an improvement in machines for making wrought-iron nails, and expired on the 20th day of January last. The last-mentioned petitioners, namely, Richard A. Vervalen and Samuel Godfrey Reynolds, attempted to make application to the Commissioner more than sixty days before the expiration of their patents, under the law as it existed at the time the patents were issued, and were wholly ignorant the law had been changed, and this is the only reason they failed to get a hearing.

The patent of John L. White was issued for an improvement in the "trucks of locomotive engines," and expired on the 6th day of January last.

The patent of Horace L. Emery was issued for an improvement in the “endless horse-chain power," and expired on the 22d day of February last.

The last-named petitioners intended fully to apply to the Commissioner of Patents for an extension, but failed to make application in time through a misapprehension of the law and the omission of agents employed by them.

The committee, being of opinion that the petitioners are entitled to the equitable relief prayed for, offer the accompanying bill and recommend its passage.

This report, though favorable to the petitioners named therein, by some unaccountable mistake, possibly a clerical error in indorsing it, was entered upon the journal of the Senate as "adverse" instead of favorable, and consequently the bill referred to was indefinitely postponed. This action of the Senate occurred on the 31st of January, 1867, and soon thereafter the petitioner sought to have the mistake corrected. Some considerable delay in regaining possession of the papers from the files of the House was occasioned, by the fact that the petitioner's name did not appear upon the files of either House, being included in the bill already referred to with that of other parties, and the name of only one appearing on the files or index to the journals. Soon as the papers were recovered another application was made to Congress for relief. The report upon the petition in this second instance was also made by the Senate Committee on Patents, and was adverse to the prayer of the petitioner. The grounds of this adverse report were, that some three years had already elapsed since the expiration of the patent; that if the patent were extended it might operate as a hardship upon those who may have invested capital in the manu facture of the improved endless railway horse-power, and that it might occasion expensive and vexatious litigation.

From the evidence now before the committee, they are of opinion that the view taken of this case in their former adverse report should be modified, especially as to the danger apprehended of hardship to those engaged in the manufacture of this horse-power, and the vexatious suits

likely to occur. It appears that the manufacture of these horse-powers has decreased rather than increased since the expiration of the patent, and for the last ten or fifteen years been limited to three or four estab lishments. And they think that the evils apprehended in the aforesaid adverse report that would follow in consequence of the patent being extended, could be entirely avoided by the usual proviso in similar legislation, of saving harmless those who have manufactured or used the improvement between the period of the expiration of the patent and the date of its renewal and extension.

From all the facts before the committee, they are of the opinion that a meritorious inventor has been deprived of the benefits of his invention for several years, through no fault of his own, but by a train of unusual misfortunes; that he is entitled to the relief prayed for, and they therefore present the accompanying bill and recommend its passage.

The Committee on Patents, to whom was referred the petition of Albert W. Gray, praying leave to apply to the Commissioner of Patents for an extension of letters patent for an improvement in horse-powers, having considered the same, beg leave to submit the following report:

Letters-patent for said improvement were issued to said Gray on the 9th of September, 1856, and afterward reissued on the 1st of July, 1862. In due time application was made to the Commissioner of Patents for an extension of said patent. The result of said application may be seen in the following final order of the Commissioner of Patents:

In this case the examiner reports that the invention was wanting in novelty. I have examined the references which he gives and cannot agree with him in his conclusions. In my opinion there is novelty in the devices claimed, and, I think, utility also. The application is. however, fatally defective in that the applicant has made no attempt, either in his original or amended statement to state, under oath," the ascertained value of the invention or discovery." The law requires this, and I have no right to dispense with it.

An extension is accordingly refused.

SEPTEMBER 5, 1870.

SAMUEL S. FISHER.

The petitioner declares that this omission was inadvertent—a mere oversight. He desires permission to supply this defect by a new application. The committee think he ought, under the circumstances, to be permitted to do so. They, therefore, recommend the passage of the accompanying bill.