the bottle. The function of the two are entirely distinct, and they cannot properly be claimed in combination. For this reason the decision of the examiners-in-chief is affirmed, but with leave to applicant to amend his claim and specification before the primary examiner. (Ib., August 3, 1870.) In the case of Alice Appleton ex parte the Commissioner says: "As the case now stands, I understand the examiner to affirm that the mode already in use of connecting knit-goods in common household practice is by a crochet-stitch, substantially the same as that of the applicant. This applicant does not deny upon the record; and as no means of comparison are furnished, the statement of the examiner must be accepted as true. The decision of the board of examiners-in-chief is affirmed, with leave to the applicant to move to remand the case to offer opportunity for amendment." (Ib., 1869, p. 8.) 232. APPEAL FROM PRIMARY EXAMINERS TO THE COMMISSIONER. Decisions of examiners upon preliminary or intermediate questions, or refusals to act, twice repeated, will be re-examined, upon application, by the Commissioner in person. (Patent Office Rules, July, 1870.) In the case of Wilkinson ex parte the Commissioner says: "This application was rejected by the examiner, because, in his opinion, the device was 'essentially deficient in patentable invention.' Thereupon the applicant demanded a reference or a patent. The examiner gave no reference, and refused a patent. Applicant reiterates his demand for a reference, and appeals to the Commissioner in person. "He has mistaken both his rights and his remedy. Rule 37 provides, that 'upon a rejection of an application for want of novelty, the applicant will be furnished with a specific reference,' &c. The present application is not rejected 'for want of novelty,' but for want of 'patentable invention.' This objection may concede that the thing is new, but deny that invention was involved in its production. No reference is required, either by rule or by law, to establish this ground of rejection. But if it were so, the remedy is by appeal to the board of examiners-in-chief, and not the Commissioner in person. This is not a decision upon an intermediate question, or upon a refusal to act. The examiner's decision goes to the merits of the application, and is adverse to the applicant. If the examiner gives a general reference, and the applicant is entitled to a specific reference, and demands it, the remedy is by appeal to the board, who would then hold the general reference to be no reference, or an insufficient one, and reverse the decision of the examiner in rejecting the application. The case does not differ in principle from one in which a specific reference is given, which the applicant claims to be insufficient to form the basis of a judgment of rejection. (Commissioners' Decisions, March 8, 1870.) "The determination of the question of title, the number of amendments, the structure of the specification, the correspondence of the drawings with the model or the written description, and the accuracy and completeness of the description, are executive acts, although discretion is exercised in their performance; but the judg ment of the examiner upon what may be called the merits, the questions of patentability and of novelty, are judicial acts. From the judicial acts of the examiner, an appeal lies to the board; from his executive acts, the appeal is to the Commissioner." (Krake ex parte, Commissioners' Decisions, 1869, p. 100.) Thus, in the case of Collins ex parte, the Commissioner says: "This is an appeal from the primary examiner. Applicant claims an 'improvement in screens or beds for receiving and securing the spawn of fish, in the art of pisciculture, whereby the process is greatly simplified and the labor diminished, and it consists in the use of a revolving screen, arranged and operating as described.' "He describes the apparatus in detail. It consists of a box placed in the race-way of a fish-pond, provided with an upper screen of wire-cloth covered with gravel, on which the fish lay their spawn. Below this is a second screen of finer material, forming an endless apron, which receives the spawn from the upper screen and conveys it to a box below, where it is secured for use. "This is all very plain and intelligible. The apparatus is well described by reference to the drawings and by wellchosen terms, and no one could have the slightest difficulty in constructing it and putting it in position for operation. "The examiner, however, declines to examine the case upon its merits, but requires the applicant 'to be more specific in his description as to the manner of the deposition of the spawn, and how it passes through the gravelbed, and what is its condition when it enters the chamber below, where and how the water enters the tank, when and where impregnation takes place, and where the embryo is developed. "The examiner misconceives the nature of the invention. It is not an improvement in the process of pisci culture, but in spawning-screens. It is a mechanical device, performing mechanical functions. It is a mere instrument, to be employed by those skilled in the art, and its nature and functions are described in terms addressed to them. It cannot be necessary to accompany such description with a treatise on fish culture; and if the applicant had embodied such a dissertation in his specification, he would be justly obnoxious to the charge of 'unnecessary prolixity,' which is condemned in terms by the statute. "The decision of the examiner is reversed, and the case will be examined on its merits." (Ib., June 8, 1870.) And in the case of Blanchard ex parte the Commissioner says: "This is an appeal from the decision of the primary examiner. "The applicant claims, 'as an improved article of manufacture, a mold-board for ridging plows, having the concavity G, for turning a furrow, a circular recess, g', and an adjustable circular plate, H, attached thereto, all as and for the purpose described.' "This claim was rejected by the examiner, because the claim was for an 'article of manufacture,' while the invention was, according to the description, only a portion of a machine.' "The applicant seems to suppose the examiner to have denied that a part of a machine was patentable. If this were so, it would unquestionably be an error. But the examiner means to affirm no more than that a fraction of a machine cannot be claimed as 'an article of manufacture.' "By the true construction of the word 'manufacture,' as used in the patent act, it fairly covers only such manufactured articles or products as are complete in themselves, or, if parts of a whole, are so far complete as to be the subject of separate manufacture and sale. Thus a lamp chimney is intended to be used with a lamp and not otherwise, nevertheless it may properly be made, sold, and patented as a new manufacture. "In this case applicant admits that 'this mold-board is adapted and applicable only to this single kind of plow. It is, in other words, a mere fraction of a machine. If a material part, it may be claimed as such, but it is not in any proper sense an article of manufacture. "The decision of the primary examiner is affirmed." (Ib., June 13, 1870.) 233. FORM OF APPEAL FROM THE EXAMINERS-IN-CHIEF TO THE COMMISSIONER. To the Commissioner of Patents. SIR: We hereby appeal to the Commissioner in person from the decision of the examiners-in-chief in the matter of our application for the reissue of letters patent for an improvement in cotton presses granted to Anthony Bowen, May 18, 1865. The following are assigned for reasons of appeal: [Here follow reasons.] WILLIAM MARTIN. XIV. Appeal to the Supreme Court of the District of |