that when the said patent issued said Stock discovered many errors and insufficiencies therein, and proceeded to consult an attorney as soon as his health permitted, looking towards a reissue of the patent on an amended and corrected specification; that before said papers were fully prepared the said Charles F. Stock died, to wit, on or about the 28th day of October, A. D. 1884. Fred Kimball. "Subscribed and sworn to before me this 18th day of March, A. D. 1885, at Peoria, Illinois. [L. S.] "N. Grier Moore, Notary Public."

On April 11, 1884, Phillip Marqua filed an application for a patent ball trap, and on the 15th of July, 1884, letters patent 301,908 therefor were issued to him. In his specifications he stated that the object of his patent was to render the ball trap more efficient, and to produce a more even flight of the target, and also to adapt the same to the sending of a tongueless target. The specifications continued: "Such traps, as at present used, employ a pivoted arm carrier, the target usually secured thereto by a tongue, and by the partial rotation of the arm upon its pivot, and the sudden arresting of its movement, the target is projected into the air with an independent, rotary motion. The flight thus imparted is not always uniform or satisfactory, but may be rendered so by imparting to the target a sudden impulse at the instant of projection independently of the carrying arm. One of the objects of my invention is to produce a trap capable of imparting this sudden and independent impulse; and, to this end, it consists in mounting upon the main sending arm an independent, pivoted carrier, which by the movement of the arm, and at the instant of arrest, is swung around upon its pivot by its own centrifugal force, and suddenly thrown into line with the main arm, as an extension thereof, releasing the target at the culmination of the instantaneous independent impulse, which imparts additional force both in projection and rotation. This feature of my invention may be independently used with traps adapted to targets either with or without tongues." The first two claims made by Marqua were as follows:

"(1) In a trap or sending apparatus for flying targets, a sending arm provided with a pivoted extension constituting the target carrier, which, by the motion and arrest of the sending arm, is independently rotated upon its pivot by centrifugal force into a position elongating the main arm, and projects the target by a sudden rotary impulse, substantially as set forth.

"(2) In a trap or sending apparatus for flying targets, a sending arm provided with a pivoted extension carrying the target, and having an independent rotation by centrifugal force, in combination with target holding and releasing mechanism automatically actuated to release the target at the moment of extreme tension of the sending arm, substantially as set forth."

The specifications and the new claims in Stock's reissued patent were drawn by Taylor E. Brown, the solicitor of Stock, and of Moore, his administrator, and of the plaintiff company herein, after he had read the specifications and claims, in July, 1884, of the foregoing Marqua patent. On October 13, 1884, Stock filed an application for a patent trap for throwing targets, which afterwards resulted in the issue of letters patent 322,020, on July 14, 1885. This patent showed a pivoted carrier which released the target automatically by the use of a cam in the holding apparatus. The two claims in the original specifications were:

“(1) In a trap for sending or throwing targets, a clamping device, pivotally secured to the end of the sending arm, provided with mechanism to automatically release the target, substantially as specified.

"(2) In a trap for sending or throwing targets, a clamping device, pivotally secured to the end of the throwing arm, provided with mechanism to automatically release the target, and also with means for imparting to said target a positive axial rotation as it leaves the trap, substantially as specified.”

These claims were rejected on the ground that they had been anticipated by the Marqua patent, just referred to, and their rejection was finally acquiesced in by the administrator of Stock, and this claim accepted instead: "In a trap for throwing targets, the target-clamping device herein shown and described, pivoted at or near the end of the throwing arm of a trap, in combination with

a double or two-faced cam formed on the end of said arm, and a depending projection or pin on the clamping device, which bears against the cam during the swing of the clamping device, releasing the same by its escape from the cam, and thereby allowing the target to escape, substantially as set forth." As already stated, this application was made on the 13th of October, 1881. This was rejected on the 28th of October, 1884, on the ground that claims 1 and 2 were functional, and, in substance, were anticipated by the Marqua patent. An amendment was filed on the 20th of February, 1885, which amendment was rejected on the 24th of that month. An amendment was filed on the 2d of March of claims 1 and 2, which was rejected on the 10th of March, 1885. On the 17th day of March, 1885, the application for the reissue with the new claims under the old patent of Stock was filed.

The defendant's target trap was based on the patent of Albert H. Hebbard, of Knoxville, Tenn., letters patent 322.714, patent granted July 21, 1885, and the application for which was filed May 19, 1885. The character of the patent may be seen from the following drawings, which are taken from Hebbard's specifications:

"B is an arm pivoted at the outer end of the arm, A, and connected with the latter by means of a spring, C, which enables the arm, B, to swing from Its normal position at an angle of ninety degrees (more or less) to the said

arm, A. to a position of one hundred and eighty degrees (more or less) to the latter. The end of the arm, B, is bifurcated, as shown at D, forming an upper and a lower prong, denoted, respectively, by letters E and F. To the said arm, B, is also hinged or pivoted a third arm, G, having a pivoted rod, H, extending through a transverse perforation, I, in the arm, B, and the outer end of which is provided with a nut, J, between which and the said arm, B, is arranged a coiled spring, K, whereby the said arm, G, is automatically drawn toward the arm, B, as will be seen in Fig. 2 of the drawings. The arm, G, is provided with a vertical pin or stud, L, which may be adjusted in any one of a series of perforations, M, M, in the said arm; and it is also provided at its outer end with an additional pin or stud, N, either stationary or arranged to revolve in its bearing, and having a sleeve or covering of rubber, leather, or other suitable material, as shown at O. P. designates a target adapted to be used in connection with a trap having my improved arm. The same consists of a concavo-convex or saucer-shaped disk, having an annular shoulder, Q, and an annular rim or flange, R." The operation of the trap is as follows:, "The arms, B, G, are drawn apart against the tension of the spring, K, and the target is then inserted between the said arms in such a manner that its under side or edge shall rest upon the arm, G, and the lower prong, F, of the arm, B, the upper prong, E, of said arm being fitted in the shoulder, Q, of the target, while the rim, R, of said target will bear against the pins or studs, L, N, of the arm, G. When, in the act of discharging the trap, a swing motion is imparted with great force to the arm, A, the target will, by the centrifugal force thus generated, be discharged by its periphery rolling, as it were, upon or around the stud or stop, N, while the opposite side of its periphery slides between the prongs, E, F, of arm, B, thereby imparting the desired axial rotation to the target."

Lysander Hill and Poole & Brown, for appellant.

E. A. Angell, (J. H. Webster, on the brief,) for appellees.

Before TAFT, Circuit Judge, and BARR and SAGE, District Judges.

TAFT, Circuit Judge, after stating the facts as above, delivered the opinion of the court.

The reissue of the patent to the administrator of Stock is based on the ground that Stock intended to claim as the chief feature of his patent a pivoted carrier, without regard to any particular releasing device, so arranged that the rotary motion of the carrier, independent of the rotary motion of the swinging arm, would give to the target an additional axial rotation, which would prevent the target from "wobbling" in the air, and give it a sailing movement, like that of a bird.

The first question is, therefore, what must have appeared to the commissioner before he had authority to enlarge the claims in a reissue so as to include in them this feature? The mechanical parts of the device, as shown in the drawings, were not changed in the reissue. The change consisted in explanations in the specifications of the advantages of this pivotal connection between the carrier and the swinging arm, by which an independent, rotary motion was imparted to the target. The reissued patent also introduced new claims, embracing, in broad terms, such pivotal connection between the target carrier and the throwing arm. Section 4916 of the Revised Statutes provides:

"Whenever any patent is inoperative or invalid by reason of a defective or insufficient specification, or by reason of the patentee claiming as his own in

vention or discovery more than he had a right to claim as new, if the error has arisen by inadvertence, accident, or mistake, and without any fraudulent or deceptive intention, the commissioner shall, on the surrender of such patent and the payment of the duty required by law, cause a new patent for the same invention, and in accordance with the corrected specification, to be issued to the patentee, or, in case of his death or an assignment of the whole or any undivided part of the original patent, then to his executors, administrators, or assigns, for the unexpired part of the term of the original patent.

The supreme court of the United States has held that while this section, literally construed, would only authorize reissues to correct specifications or claims defective or inoperative because too broad, it would construe the section liberally to give the commissioner of patents power to grant a reissue to expand claims which had been made too narrow by reason of accident, inadvertence, or mistake, without fraud. But it has been held in a number of cases that the commissioner is without power to grant a reissue unless it shall clearly appear that the patent, as originally issued, was defective and inoperative for the invention intended; that this defect and inoperativeness arose through inadvertence and mistake; and, finally, that the patentee had not, by lapse of time and laches, abandoned his right to have the correction made. With respect to the proof of inadvertence, accident, or mistake, the action of the commissioner is conclusive, if there is any evidence before him tending to show such accident, inadvertence, and mistake as will, in law, warrant a reissue. With respect to whether the original patent is inoperative and defective, the court has always reserved the right to review the action of the commissioner. If it shall appear from an examination of the new and old patents that the old patent was not defective or inoperative, but was for a complete invention, and that the reissue was taken out to secure another and different invention lurking in the mechanical arrangement of parts, the supreme court has always held the reissue void. Parker & Whipple Co. v. Yale Clock Co., 123 U. S. 87, 8 Sup. Ct. Rep. 38. Again, if an examination of the patent-office record discloses that there was no evidence before the commissioner of accident, inadvertence, or mistake, such as to warrant him in reissuing the patent, or that there was record evidence, of a conclusive character, showing that there could have been no accident, inadvertence, or mistake, the supreme court has not hesitated to hold a reissue void. This is manifest from an examination of the decisions of that court. In the case of Huber v. Manufacturing Co., -the last case in which the supreme court has had occasion to consider the question of reissues,-148 U. S. 270, 13 Sup. Ct. Rep. 603, the supreme court expressly approved the language of Judge Thayer in the court below, to be found in Huber v. Manufacturing Co., 38 Fed. Rep. 836, where, considering the question of his power to review the action of the commissioner in granting a reissue, he said:

"All of the evidence that was before the commissioner, tending to show inadvertence and mistake, (such as the affidavit of the inventor and his solicitor, and other documents) was offered by the complainant in the present case, and

was supplemented by some additional testimony. Under such circumstances, I understand the law to be that the court may review the finding of the commissioner on the point that the original patent was inoperative by reason of inadvertence or mistake; at least, to the extent of determining whether, as a matter of law, what was described and alleged to be a mistake is such a mistake as will warrant a reissue."

Justice Bradley, in Mahn v. Harwood, 112 U. S. 354--362, 5 Sup. Ct. Rep. 174, and 6 Sup. Ct. Rep. 451, said that

"Whenever it is manifest from the patent itself, compared with the original patent and cognate documents of record, or from the facts developed in the case, that the commissioner Lust have disregarded the rules of law by which his authority to grant a reissue in such cases is governed, the patent will be considered as void to the extent of such illegality. It is then a question of law, not a question of fact."

The fact which the commissioner of patents must have found, and which there must have been some evidence before him tending to show, was that when Stock filed his first specifications, knowing the additional advantage that would be obtained from the pivotal connection of the carrier with the swinging arm, because of the additional axial rotation of the target caused thereby, he intended to claim broadly such pivotal connection. If all that he had in mind as to the good result of the pivotal connection was the automatic releasing of the target at a particular time, and all that he intended to claim was the use of that pivotal joint between the carrier and the swinging arm, in connection with the other parts of the releasing device, because it was necessary to make operative his releasing device, then he was not entitled to a reis sue to broaden his claims so as to include any pivotal connection between the carrier and the swinging arm, uncombined with his releasing device.

Therefore, the question now to be determined is whether there was any evidence before the commissioner of patents which justified him in holding that Stock, at the time he filed his original application, intended to claim, broadly, the device of a pivotal connection between the carrier and the swinging arm, without regard to the releasing device, which should give the target an additional axial rotation.

In the first place, the original patent shows no defect or inoperativeness on its face. The drawings, the specifications, and the claims show nothing but an improved device for releasing the target. The pivoted connection of the carrier with the swinging arm manifestly plays an important part in the releasing device, and there is not the slightest suggestion in the specifications or claims that it has any other function than that. It admits of serious doubt whether we ought not to hold that the reissue is so plainly for an invention different from that described and covered in the original that the reissue is void. Parker & Whipple Co. v. Yale Clock Co., 123 U. S. 87, 8 Sup. Ct. Rep. 38. It might be forcibly argued that the first patent was for a releasing device and the reissue was for a throwing device. The argument would be supported by the omission in the reissue of the word "gradually," found in the old