SEC.

336. Testimony received by agreement of parties.

337. Testimony taken on former interference.

338. Assignment of time.

SEC.

339. Postponement.

340. Form of notice of taking testimony.

341. Form of deposition.

342. Form of certificate.

318. COMMISSIONER MAY ESTABLISH RULES FOR TAKING AFFIDAVITS AND DEPOSITIONS.-The Commissioner may establish rules for taking affidavits and depositions. (Act of July 8, 1870, § 43.)

319. BEFORE WHOM TAKEN.-And such affidavits and depositions may be taken before any officer authorized by law to take depositions to be used in the courts of the United States, or of the State where the officer resides. (Ib.)

As to what officers are authorized to administer oaths vide supra, p. 318.

320. CLERK TO ISSUE SUBPENA.-The clerk of any court of the United States for any district or Territory wherein testimony is to be taken for use in any contested case pending in the Patent Office, shall, upon the application of any party thereto, or his agent or attorney, issue subpena for any witness residing or being within said district or Territory, commanding him to appear and testify before any officer in said district or Territory, authorized to take depositions and affidavits, at any time and place in the subpena stated. (Ib., § 44.)

321. PENALTY FOR REFUSING TO APPEAR AND TESTIFY.

If any witness, after being duly served with such subpena, shall neglect or refuse to appear, or, after appearing, shall refuse to testify, the judge of the court whose clerk issued the subpena may, on proof of such neglect

or refusal, enforce obedience to the process, or punish the disobedience as in other like cases. (Ib.)

A person who, after being regularly served with a subpena, refuses or neglects to attend the trial, may be proceeded against by attachment. It is presumed also that an action on the case may be maintained against him; but before an attachment will be granted it must appear that the subpena was personally served upon him a reasonable time before the trial, and that the fees allowed by law were paid or tendered to him.

In the courts of the United States witnesses are entitled to the sum of one dollar and fifty cents for each day's attendance at the court, to the further sum of five cents per mile for traveling from their place of abode to the place where the court is holden, and to the like allowance for returning. (Act of February 26, 1853, c. 80.) The sum, therefore, which it is necessary to tender upon serving a subpena is one dollar and fifty cents for one day's attendance, and ten cents for each mile of distance between the residence of the witness and the place where the court is to be held. (Conklin's Treatise, 386.)

322. RULES OF THE PATENT OFFICE FOR TAKING AND TRANSMITTING EVIDENCE.-In interference, extension, and other contested cases the following rules have been established for taking and transmitting evidence:

323. NOTICE.-First. That, before the deposition of a witness or witnesses be taken by either party, due notice shall be given to the opposite party, as hereinafter provided, of the time and place when and where such deposition or depositions will be taken, with the names and residences of the witness or witnesses then and there to be examined, so that the opposite party, either in person

or by attorney, shall have full opportunity to crossexamine the witness or witnesses: Provided, That if the opposite party or his counsel be actually present at the taking of testimony, witnesses not named in the notice may be examined, but not otherwise. And such notice shall, with proof of service of the same, be attached to the deposition or depositions, whether the party cross-examine or not; aud such notice shall be given in sufficient time for the appearance of the opposite party.

324. CERTIFIED COPY OF CAVEAT.-Second. That, whenever a party relies upon a caveat to establish the date of his invention, a certified copy thereof must be filed in evidence, with due notice to the opposite party, as no notice can be taken by the office of a caveat filed in its secret archives.

325. EVIDENCE TO BE SEALED, &c.-Third. That all evidence, &c., shall be sealed up, entitled upon the envelope with the name of the case in which it is taken, and addressed to the Commissioner of Patents by the person before whom it shall be taken, and so certified thereon, and forwarded, immediately upon the close of the examination, to the Patent Office.

326. EX PARTE TESTIMONY.-Fourth. In cases of extension, where no opposition is made, ex parte testimony will be received from the applicant; and such testimony as may have been taken by the applicant prior to notice of opposition shall be received, unless taken within thirty days after filing the petition for the extension; Provided, That immediately upon receiving notice of opposition the applicant shall give notice to the opposing party or parties of the names and residences of the witnesses whose testimony has thus been taken.

327. NOTICE OF OBJECTION.-Fifth. That no evidence touching the matter at issue will be considered upon the day of hearing which shall not have been taken and filed in compliance with these rules: Provided, Notice of the objection has been given, as hereinafter prescribed, (vide infra, § 314:) Provided also, That if either party shall be unable, for good and sufficient reasons, to procure the testimony of a witness or witnesses within the stipulated time, it shall be the duty of said party to give notice of the same to the Commissioner of Patents, accompanied by statements, under oath, of the cause of such inability, and of the names of such witnesses, and of the facts expected to be proved by them, and of the steps which have been taken to procure said testimony, and of the time or times when efforts have been made to procure it; which last-mentioned notice to the Commissioner shall be received by him previous to the day of hearing aforesaid. (Patent Office Rules, July, 1870.)

328. FORCE AND EFFECT OF PATENT OFFICE RULES. The rules and regulations of the Patent Office, as to taking testimony in cases of interference, are binding upon the parties, and each is entitled to the benefits of them, and, until abrogated, they are as binding upon the Commissioner himself as if enacted by the statute itself. (O'Hara v. Haws, MS. Appeal Cases, D. C., 1859.)

The power granted to the Patent Office to make rules in respect to the taking of evidence gives no new right to make new rules of evidence, or to make new rules of law, or to divest vested rights by its rules of practice. (Dyson ex parte, ib., 1860.)

Evidence taken under the rules established by the Commissioner of Patents, under the statute, must not

only be taken agreeably to these rules, but must be evidence competent in law. (Arnold v. Bishop, ib., 1841.)

The rules referred to do not prohibit the Commissioner from looking into the deposition informally transmitted, or reading it and ascertaining its contents; but only prohibit him from considering it as evidence touching the matter in issue. (Smith v. Flickenger, b., 1843.)

The rules of the Patent Office as to the taking of testimony are to be just and reasonable, according to the established principles and precedents in like cases. (Nich ols v. Harris, ib., 1854.)

329. SERVICE OF NOTICE FOR TAKING TESTIMONY.-The notice for taking testimony must be served by delivering a copy to the adverse party, or his agent or attorney of record or counsel, or by leaving a copy at the party's usual place of residence, with some member of the family who has arrived at the years of discretion. The notice must be annexed to the deposition, with a certificate, duly sworn to, stating the manner and time in which the service was made. (Patent Office Rules, July, 1870.)

Service of notice to take testimony may be made upon applicant, upon the opponent, upon the attorney of record of either, or, if there be no attorney of record, upon any attorney or agent who takes part in the service of notice or the examination of the witnesses of either party. Where notice to take testimony has already been given to an opponent, and a new opponent subsequently gives notice of his intention to oppose, the examination need not be postponed, but notice thereof may be given to such subsequent opponent by mail or by telegraph. This rule, however, does not apply to ex parte examina