missioner personally: "This matter is postponed. If not called up by the commissioner on or before the expiration of six months, the examiner will bring the case to the attention of the commissioner." The paper also bears a further indorsement, made exactly six months and one day subsequent, by the acting commissioner, as follows: "This matter is again postponed until further notice." Another indorsement appears under date of September 30, 1889, also signed by the commissioner: "This matter is postponed to Oct. 22, 1889, when, notice having been given, the order to show cause, dated Jan. 19, 1889, will be heard by the commissioner." That this series of postponements commenced by a personal order of the commissioner appears from the fact shown in the record that the commissioner informed the examiner that the solicitor general, who in this matter was acting as the attorney general of the United States, was conducting a suit against the Bell Telephone Company, being the same as U. S. v. American Bell Tel. Co., 128 U. S. 315, 9 Sup. Ct. 90, already referred to, and desired in the course of that suit to make use of Drawbaugh or some of his witnesses, and that he (the solicitor general) thought it would be prejudicial to his chances of obtaining the testimony desired if the patent office should at the same time prosecute a proceeding against Drawbaugh. This proof, of course, does not legally charge the solicitor general, as it is mere evidence of a conversation as to which he was not a party; but it leaves no doubt that at this point the commissioner took personal responsibility in the matter. The details touching the other postponements covered by the indorsements referred to we have no occasion to investigate. It is plain, therefore, the commissioners were at various crucial points personally acquainted with the magnitude of the controversy, and with some of its details. Knowing its magnitude, they knew, at least in a general way, that detriment to the public interests would come from delay in the progress of the case in the event that it was followed by the issue of a patent. This was all which it was necessary they should know, as it is the pith of the entire complaint of the United States. Having this knowledge, the claim of the United States that the American Bell Telephone Company should have suggested on the record, or anywhere else, that delay in the application was prolonging the monopoly of the microphone, falls, of course, to the ground, unless we accept the extreme proposition that it was the duty of that corporation to keep this fact constantly before the eyes of the commissioner personally.

It is not to be forgotten that among the difficulties which the Bell Telephone Company was forced to face was the fact that its application was twice rejected,-once during the first period named by the United States, and the second, under formidable objections, during the third period. A brief statement of the occurrences during the latter period was specially reported by the examiner to the commissioner under date of October 29, 1891. This report contained the following statement:

"The interfering application, by reason of which this application has been suspended and withheld from issue, contained claims for the same invention

as that herein claimed. It was therefore necessary to declare an interference if the interfering applicant could show that he was entitled to the claims except as regards the question of priority with Berliner. But the claims of the interfering applicant were under rejection for various reasons, and it was necessary that he be given opportunity to overcome the rejection. To this end he prosecuted his application. Finally, my immediate predecessor instituted a public use proceeding under the supervision of the examiner of interferences. This proceeding was sharply contested by the interfering applicant, and resulted against him; my decision based on the findings of the examiner of interferences having been affirmed by the board of examiners in chief, and the decision of the board having been yesterday affirmed by you. This decision removes the only impediment to the allowance of the Berliner application."

The Berliner patent was taken out almost immediately afterwards; that is, November 17, 1891. Subsequently, on December 13, 1892, at the request of the attorney general touching the pending suit, the secretary of the interior obtained a report from the commissioner of patents of the history of the patent. Both the commissioner and the secretary of the interior had before them a brief from the relator at whose suggestion this suit was brought; so that the issues were fully understood by them. The commissioner's report to the secretary of the interior contains an extract from the report of the examiner, to which we have already referred, as follows: "The office delay from October 23, 1883, to November 16, 1888, should not, so far as the records are known to me, have occurred." This examiner was not personally familiar with the unofficial and informal proceedings covering that period. But the report of the commissioner was such that the secretary of the interior answered the attorney general that it was "certainly true that from 1889 the case has been pressed to judgment without any delay that could be avoided." This means undoubtedly, in accordance with the dates given by the examiner, to include the whole of the year 1889, at least so much of it as the officials whose reports we are discussing were in office, which was from the early part of March. While the report of the secretary of the interior cannot be taken formally as governing this court, yet, in view of the facts to which we have referred and of others in the record, we unhesitatingly accept it as our own conclusion. It covers substantially the third period.

This disposes of all questions of diligence so far as this period is concerned, whatever may be the rule. But, for the purpose of further ascertaining in what manner the American Bell Telephone Company could have practically exhibited the degree of diligence required of it by the United States, we inquire, what obligation rested on it with reference to the interference of the solicitor general? He presumably represented the settled policy of the department of justice. In the line of criticism in this case, this supposed interference of the solicitor general has also been severely reprehended; but he is not on trial here, and has not been heard. We are to assume that he was engaged in the honest performance of what was regarded by him as a great public duty, in a legal contest of the gravest character with the American Bell Telephone Company itself, represented here as a wealthy, powerful, and influential antagonist. In reply to a question put from the bench, in what ef

fective way this corporation could exercise with reference to this particular crisis the degree of diligence required of it by the United States, the answer was, by laying the case in all its relations personally before the solicitor general. The United States seem to assume that the solicitor general, as well as the commissioner, failed to appreciate the grave consequences, as now described, likely to arise from delay in acting on the application touching the Berliner microphone, and that it was the special duty of the defendant corporation to set him right. But, looking at the matter from the position of those accustomed to engage in large and important litigation, we cannot doubt that the counsel for the United States would be forced on reconsideration to agree with the court that, at the crisis to which we refer, any approaches by the American Bell Telephone Company to the solicitor general, having regard to anything which would weaken or hamper the prosecution of the then suit, would have been regarded with suspicion, and would have been entirely beyond and outside of the efforts reasonably expected from solicitors and counsel with reference to any pending hostile proceedings. Like every other proposition in the case having in view an explanation of the practical methods in which the American Bell Telephone Company could have exercised at various stages the extreme degree of diligence asked of it by the United States, this one fails to bear out any test whatsoever.

But the United States say that, during this period to which we are now referring, the commissioner made a ruling which, if availed of by the American Bell Telephone Company, would have promptly solved the pending difficulties. We refer to it, not for the purpose of going over the conclusions we have already stated on this part of the case, but as a further illustration of the ineffectual attempt of the United States to suggest practical methods available to that corporation. The United States point out that in May, 1888, the commissioner ruled that, notwithstanding the pendency of a probable interference or of an interference actually declared, the commissioner might, under the circumstances described in that decision, direct the issue of one of the patents involved. This was so clearly contrary to the long-settled practice of the patent office, and would so directly tend to involve the office in the embarrassing necessity, from time to time, of issuing two patents for the same invention to hostile applicants, that we find no mention of it further in the case, and no suggestion that any of the officials of the patent office ever afterward attempted to act on it. However, the American Bell Telephone Company, in 1886, soon after the decision of The Telephone Cases at the circuit, attempted to accomplish this same result, on the ground that that decision disposed of the Drawbaugh application. The matter came to the personal attention of the commissioner, who, in his reply of April 24, 1886, practically declined to acquiesce in this proposition, and suggested that an interference should be declared, reserving himself from prejudice touching such declaration if it came before him on appeal. But under the settled practice of the patent office, and the construction which that office had long given section 4904 of the Revised Statutes touching inter

ferences, the declaration of an interference at that time clearly could not have been made. The commissioner was then new in his office, and, as his suggestion was not an order, it was not followed out. The American Bell Telephone Company, having attempted this once, and failed, may well be excused for not attempting it again.

Returning now to the second period named by the United States,that is to say, from June 9, 1882, until the decision of the supreme court, in the spring of 1888, in The Telephone Cases, reported in 126 U. S. 1, 8 Sup. Ct. 778,-we will note at the outset that the report of the commissioner, accepted by the attorney general, to which we have already referred, reduces this period to one from October 23, 1883, to November 16, 1888; a matter of some five years. This, however, is of no consequence, except so far as it is explanatory of some other facts to which we may refer. June 9, 1882, the Drawbaugh application was still pending in the patent office. It had been rejected on the ground that the Edison carbon microphone and the Bell telephone had been in use more than two years prior to Drawbaugh's application. But Drawbaugh claimed that this public use was without his consent, and therefore did not affect him. It is also conceded by the United States, as well as claimed by the American Bell Telephone Company, that this rejection of Drawbaugh was not final, because, as said by the United States, "it was still open to him to traverse the fact, and have the question settled by public use proceeding." But it is said by the United States that the patent office could easily have disposed of Drawbaugh, because at that time the law was well settled that, under the statute of 1870, two years' public use, even without his consent, was fatal to him; and Manning v. Glue Co., 108 U. S. 462, 2 Sup. Ct. 860, is referred to as settling this point. This case was not decided until May 7, 1883. It did not involve this question; and what was said therein touching it was a dictum, and was never acquiesced in by Drawbaugh's solicitors. Whether the law can now be regarded as settled, in view of Andrews v. Hovey (decided Nov. 14, 1887) 123 U. S. 267, 8 Sup. Ct. 101, in consideration that it discusses the act of 1870, now section 4886 of the Revised Statutes, as well as the act of 1839, we need not consider. The American Bell Telephone Company was compelled, with reference to the progress of this application, to meet the practical condition of things, and we must put ourselves in that position. Therefore, whatever may now be said as to the theoretical side of the law, it is more appropriate to the purposes of this case to observe that Drawbaugh's solicitors did succeed in practically retaining his application under adjudication by the patent office, until near the close of October, 1891, as already stated.

But Drawbaugh made another difficulty, of perhaps a more serious character. The vigor and pertinacity with which the Drawbaugh application was maintained in hostility to the Bell interest went to such an extent that we may well infer from the record that even if the position of the United States, substantially to the effect that the American Bell Telephone Company is to be judged of in its performance of a legal duty according to its pecuniary ability, was sound,

it would be offset and neutralized by the financial resources, skill, and personal importance of whomsoever controlled the Drawbaugh interests. Not only was Drawbaugh pressing his own application, but it is admitted by the United States that he was opposing the issue of a pateat on the Berliner microphone, on the ground of prior invention by himself, and was ready to file affidavits in support of his contention. What these affidavits would mean will appear from the fact that the Drawbaugh Case, in all its aspects, as opposed either to Bell, Edison, or Berliner, was a unit, and in either aspect involved the great bulk of the facts considered in The Telephone Cases, 126 U. S., occupying that entire volume (8 Sup. Ct. 778), and finally divid ing that court by three judges in favor of Drawbaugh to only four against him. It was claimed by the United States at one point that this litigation did not involve the microphone, but, with a clear inconsistency, the United States, at another point in its argument at bar, rested one of its propositions as to the alleged duty of the commissioner at a certain crisis on the distinct ground that the circuit court had decided that Drawbaugh did not invent the microphone. The fact is that the entire dispute as between Drawbaugh, on one side, and Bell, Edison, and Berliner, on the other, turned on one and the same question, namely, the truth or falsity of Drawbaugh's story; so that, as testified to by the president of the American Bell Telephone Company, if Drawbaugh's story was substantially true, it cut up by the roots all that Edison and Berliner had done. Therefore, the affidavits which the United States say Drawbaugh was ready to file, with those in response, might be equivalent to the substance of the case found in 126 U. S. and 8 Sup. Ct. 778.

At one point in the argument the United States stated that the condition in June, 1882, was as follows:

"The examiner was refusing to issue Berliner's patent because Drawbaugh had an application pending for the same invention. He was refusing to approve Drawbaugh's claims because they were barred by public use. He could not declare an interference until that rejection was overcome, and he knew that it could not be overcome. Here was a deadlock!"

In partial explanation of this apparent deadlock, it is to be said that the practical construction of section 4904 of the Revised Statutes touching interferences, as given it by the patent office, is to the effect that no interference can be declared involving the claims embraced in any application, until those claims have been found to be patentable independently of the possible result of the interference. Therefore, the practice has been, on discovering claims apparently interfering, to hold back both applications until the patentability of each is determined, and then declare an interference. This produces very much the same result, so far as delay is concerned, as would follow if, with an ordinary bill of interpleader, no parties could be made to it, until after the right of each person sought to be made a party had been determined as against all the world except the other intended parties. By the admission of all, the course of proceedings had crystallized into that form, and the American Bell Telephone Company is not subject to just criticism if it accepted it as it found it.