the record, was acknowledged before a notary public the same day that it bears date, and was recorded in the patent office December 30, 1890. Objection was made to its admission because it had not been properly proved, and the objection seems to be well taken. No doubt by act of Congress (Rev. St. § 892 [U. S. Comp. St. 1901, p. 673]): "Written or printed copies of any records, papers or drawings, belonging to the patent office * authenticated by the seal, and certified by the commissioner or acting commissioner, shall be evidence in all cases wherein the originals could be evidence."

But this merely dispenses with the production of the record, a certified copy from it being made the equivalent. It does not establish the due execution or genuineness of a paper which happens to be found there, which must still be proved in the usual way. Nor is this affected by the act of March 3, 1897, c. 391, § 5, 29 Stat. 692 (U. S. Comp. St. 1901, p. 3387), which provides that, if any assignment, grant, or conveyance of a patent shall be acknowledged before a notary public, or certain other designated officers, "the certificate of such acknowledgment under the hand and official seal of such notary or other officer, shall be prima facie evidence of the execution of such assignment, grant, or conveyance." An assignment so authenticated does not have to be otherwise proved, as by calling the subscribing witnesses, or by proof of the handwriting of the party who executed it. But the document itself must still be produced, and not a certified copy taken from the record, which in no respect is made a substitute. For the purpose of notice, an assignment of a patent is required to be recorded within three months, and if not so recorded is made void as against a subsequent purchaser or mortgagee for value, without notice. Rev. St. § 4898 (U. S. Comp. St. 1901, p. 3387). But, while constructive notice may be effectively provided for in this way, parties being thereby put upon inquiry, inquiry is by no means excused, nor can the record alone be relied on to make out title, however it may be resorted to, to trace it. No doubt there are authorities entitled to respect which hold otherwise (Dederick v. Agricultural Co. [C. C.] 26 Fed. 763; Natl. Folding Box Co. v. American Paper Pail Co. [C. C.] 55 Fed. 488; Standard Elevator Co. v. Crane Elevator Co., 76 Fed. 767, 22 C. C. A. 549); but not, in my judgment, with reason,

been or should thereafter be made by the said first parties, relating to any and all kinds of explosive compounds and substances containing nitroglycerin, and in the machinery and appliances used or usable in the manufacture of such explosives, whether then patented or not, or for which application might be pending; thereupon, in consideration of $25,000 paid them; the said first parties sold, assigned, conveyed, and set over to the said second parties, their successors, and assigns-to the Repauno Chemical Company an undivided onethird, and to the Atlantic Dynamite Company an undivided two-thirds, in and to the said letters patent, and in and to all claims arising out of the infringement thereof, and also in and to all inventions and discoveries, joint and several, which had been or might thereafter be made by said first parties, relating in any way to explosive compounds and substances, whether patented or not, and in and to all letters patent which could or should be obtained in this or other countries therefor, agreeing for themselves, their heirs. executors, and administrators to execute all necessary papers connected therewith.

164 F.-4

the correct view being the other way (Paine v. Trask, 56 Fed. 233, 5 C. C. A. 497; Mayor v. American Cable Railroad, 60 Fed. 1016, 9 C. C. A. 336). The case is not to be ruled by analogy with the recording of deeds for the alienation of real estate, which depends upon the effect of local statutes, where, as in Pennsylvania for instance, an exemplification of the record is expressly made evidence, "as valid and effectual in law as the original deeds themselves." 1 Brightly's Dig. p. 472, par. 74. Congress might have so provided, but the fact is that it has not done so, and that is the end of it.

But, even if the agreement here were properly proved, it would not be effectual to overcome the complainant's title. Assuming that an undertaking, such as it was, to assign all inventions and discoveries. which should thereafter be made by Schrader and Penniman, in any way relating to explosive compounds and substances containing nitroglycerin, and to the machinery and appliances used or usable in the manufacture of the same, was broad enough to include a device of the character of that in suit, which is merely a machine for packing explosive gelatin, which may be doubted, and that it is not open to the charge, by reason of its generality, of being a mortgage on future inventive efforts of the parties, which is not favored (Aspinwall Mfg. Co. v. Gill [C. C.] 32 Fed. 697, 700), as it might well be regarded; even so, it was not such an instrument as is covered by the statute, and was not entitled, in consequence, to be put on record, and if not, it conveyed no notice of its terms to the complainant, who thus took title without regard to it. It is well established that the recording of an instrument not provided for by the recording acts conveys no notice. 24 Am. & Eng. Encycl. Law (2d Ed.) 24, 141; Burck v. Taylor, 152 U. S. 634, 14 Sup. Ct. 696, 38 L. Ed. 578; Heister v. Fortner, 2 Bin. (Pa.) 40, 4 Am. Dec. 417. And, no assignment of an unpatented invention being authorized or required to be recorded-unless it be an assignment on which a patent is to directly issue-an agreement to assign a patent not yet obtained is not within the statute, and recording it amounts to nothing. Wright v. Randel (C. C.) 8 Fed. 591, 599; New York Paper Bag Co. v. Union Paper Bag Co. (C. C.) 32 Fed. 783, 788; Regan Vapor Engine Co. v. Pacific Gas Engine Co., 49 Fed. 68, 1 C. C. A. 169. Nor, therefore, is a certified copy of it evidence, even if, contrary to the views above expressed, such copy might be in other

cases.

Independent of these considerations, and giving to the copy of the agreement the full force and effect contended for, it is claimed that whatever title or interest was thereby acquired by the Repauno Chemical Company or the Atlantic Dynamite Company is now vested in the complainants by sundry mesne conveyances and transfers. But the. evidence as to this is not so complete as it might be, although not open to some of the objections made to it, which incline to be hypercritical; and I will not therefore go into it. It is sufficient to observe that, for the reasons given, the record of the agreement, which is now sought to be set up as proof of a possible outstanding title in others, was no notice to the complainants of its contents, and interposed no im pediment to their taking title, as they did, through the assignment from

the executrix of the patentee, which thus invested them with the full and complete ownership.

This clears the way for the examination of the patent. Explosive gelatin, which it concerns, is put up for use in the form of cartridges about eight inches long and of varying thicknesses, the material being put through a so-called packing machine and turned out from the nozzle in a continuous sausage-like rope, which is cut up and inclosed in waterproof paper bags or skins, for convenience of use and handling. The gelatin has the consistency of putty, with a grain like brown sugar, and in the somewhat primitive type of machine known as the "Sundstrom," extensively employed at the time of the patent, the material was fed intermittently into a rectangular hopper, from the bottom of which it was forced through a nozzle by a horizontally revolving shaft and screw, the gelatin, on account of its sluggish character, being pressed down upon the screw by a platen or plunger, fitted to the hopper, and operated by hand, by a screw and lever, after the manner of the ordinary screw press. There were two serious objections to this, however. In the first place, each time after the hopper had been filled and exhausted, it was necessary to discontinue the operation, raise and remove the plunger-a slow and by no means simple matter-and, having refilled the hopper, resume the process again. And in the next place, owing to the low temperature at which the gelatin explodes, great care had to be exercised lest it should go off, as it easily might, under the heat generated by the pressure or delivery of it by the plunger, beyond the capacity of the packing screw to take. The object of the invention in suit was to obviate these difficulties; the operation being made continuous, the material being fed uninterruptedly into the unobstructed mouth of the hopper as fast as it is taken care of by the packing screw below and the pressure on it being at the same time automatically regulated and relieved by the screw-feed mechanism by which it is delivered. The hopper and packing screw with its nozzle and case are retained, but the hopper is in the form of an inverted cone, having interior converging ribs, within which is a centrally located, revolving, machine-driven shaft, weighted at the top, and provided with sectional blades or paddles, arranged spirally, and set at an angle to the plane of rotation, with a worm at the end, the shaft being rotated in the direction of their highest edge, and being loosely splined in its gears, so as to be free to rise and fall as required. The material being fed regularly into the mouth of the hopper, is carried downwards by the action of the revolving blades, and forced through the nozzle, by the packing screw below, to form a rope. And in case of any accumulation or clogging of the gelatin at the bottom of the hopper beyond the capacity of the packing screw to relieve, the condensation and back pressure. so produced cause the blades, by reason of their angularity, to ride on the material, forcing the shaft upwards against the resistance of the weights at the top, which are adjusted to meet normal pressure only, the shaft being free to rise through its gears, and settling back again into place when the pressure is relieved. The delivery of the material is thus lessened and ultimately stopped, if the conditions persist, until

the packing screw is able to keep up with the supply, the continuity of the operation being preserved and made automatically safe.

That there is nothing to anticipate this in the prior art is clear. The Sundstrom machine, which it supersedes, after ten or more years of continuous use, is the only device with which comparison is really to be made, being not only the best, but in fact the only one, of the kind which had been so far produced; but it offers nothing with which to compete. Its crude and primitive character, by contrast, requires but a glance. The hopper and the packing screw and nozzle, being essentials, are found in both, but are so improved upon and combined with new and different parts as to revolutionize the whole. Indeed, if there was nothing more than the change from the slow, complex, and interrupted operation of the one to the simple and continuous operation of the other, it would be enough to signalize the present device; while

with the added arrangement of feed mechanism, by which the dangerous condensation of the material at the bottom of the hopper above the packing screw is automatically obviated and relieved, the invention is made to stand out as one of decided, if not conspicuous, merit. By the old and superseded method, after a hopper full of material, laboriously worked down upon the packing screw by hand, by means of the screw press and plunger, had been disposed of, the plunger had to be screwed back to the top, the hinged bar, in which it hung, unlatched, the plunger withdrawn from the hopper, the hopper refilled, the plunger put back, the bar swung down into place and latched, and the process resumed, to be repeated in exactly the same slow way to the end. The touch of the operator also was the only thing relied on to guage the pressure and not let it get too much. All this, however, is now done away with in the device in suit; the operator having merely to set the machine going, keep it supplied with material, which is readily fed into it from above, and watch the result.

It may be, as contended, that many, if not all, of the different parts of the machine, of similar form, and somewhat similarly, if not suggestively, combined and used, are to be found in various arts; and that, changing a feature here and another there, existing machines, however foreign to their original purpose, could be transformed into something of the kind which we have here. But that is not the test. Inventors are not held to the devising of new mechanical forms, or the discovery of hitherto unknown physical principles, but only to the new adaptation and application of those which are already at hand. Not that this is not to be desired, if able to be attained, but simply that it is not required. Neither, in the effort to anticipate, are existing devices to be manipulated and made over at will. The question is whether, having regard to what there has been in the past, new and beneficial results have been produced by means not before employed, amounting to inventive advance. And this is not met by evidence that, with the new light possessed, old devices might possibly be made over to do the same thing. Outside of the immediate art of the patent, the Heilmann Candy Machine, according to the defendant's expert, comes the nearest to being an anticipation, and if that cannot be said of it, it will not be necessary to discuss the rest. But the most cursory examination of it will suffice to convince that such is not the case. No doubt it shows a hopper, with a packing screw and nozzle below, through which the material is forced, to produce certain forms. But the material is pressed down upon the packing screw simply by means of a plunger or platen which feeds the hopper and is loaded with a weight suspended on a hinged bar or lever, on which it is movable to increase or lessen the force applied. This, while not so complicated or cumbersome as the plunger of the Sundstrom, is not much better, and is equally crude. It is possible that, with some slight modification, an effective machine for the packing of explosive gelatin could be made out of it, but not clearly of the character of that in suit. It is not enough that both have a hopper with a packing screw and nozzle, where the resemblance practically ends. The weighted plunger, suspended on its hinged lever bar, to press down the material upon the