Mr. Justice Van Orsdel
delivered the opinion of the Court:
The subject-matter of Eelsing’s appeal will first be considered. We are met at the outset with the question of his right to make claims corresponding to counts 1, 2, 3, 4-, 5, and 7. Not only were his original specification and claims silent in regard to the bottoms of the hoppers being open, but his drawings, on which he bases his right to the claims, are so vague and indefinite on this point as to lead the Primary Examiner to remark, when considering the motion to dissolve, “It is enough to say that, in my opinion, the study of it, with or without the aid of his specifications, would not suggest to the reader the subject of these claims. After reading Nelson’s patent, he might go searching Eelsing’s drawing, and fancy he could put such a construction upon some uncertain lines of it as would enable him to strain the open-bottomed hopper invention into it. But coming, fresh, to Eelsing’s patent, and without any prior suggestion as to the matter, I do [425]*425not think the patent would afford a clear and distinct suggestion of the matter. In fact, Felsing himself confesses to a material lack of this sort in his patent drawing, by presenting in his reissue drawing, an additional figure patterned closely after Nelson’s figure 4, all which is quite persuasive of an endeavor on Felsing’s part to level up his showing to Nelson’s.”
Section 4916 of the Revised Statutes, U. S. Comp. Stat. 1901, p. 3393, provides that, under certain conditions, the Commissioner, on surrender of a patent, may cause a new patent for the same invention to be issued to the patentee. “The specification may be amended so as to make it more clear and distinct; the claim may be modified so as to make it more conformable to the-exact rights of the patentee; but the invention must be the same.” Giant Powder Co. v. California Powder Works, 98 U. S. 126, 25 L. ed. 77. The phrase “same invention” has repeatedly been defined by the courts to mean whatever invention was described in the original letters patent and appears therein to have been intended to be secured thereby. Walker, Patents, sec. 233. Mere disclosure in the drawing is not sufficient to evidence such intention. This rule precludes the interpolation of new matter into the reissue application. “By 'new matter’ we suppose to be meant 'new substantive matter,’ such as would have the effect of changing the invention, or of introducing what might be the subject of another application for a patent.” Giant Powder Co. v. California Powder Works, supra. The case of Parker & W. Co. v. Yale Clock Co. 123 U. S. 87, 31 L. ed. 100, 8 Sup. Ct. Rep. 38, is directly in point. This suit was brought on a reissued patent. The original patent contained no description of the subject-matter covered by the first eight claims of the reissue, although the drawings might he construed to disclose the invention. “An examination of the Hotchkiss patent showed that the vital parts of the invention were not alluded to in the specification, or in the claims. Perhaps the fact that the clock had three wheels, and their position, might have been understood by an-expert, from drawing No. 6.” The Supreme Court, speaking of the right to make the claims in the reissue, said through Mr. Justice Blatehford: “In what was thus said in Seymour v. Os[426]*426borne, 11 Wall. 516, 20 L. ed. 33, there is no warrant for the view that ex vi termini, what was suggested or indicated in the original specification, drawing, or patent-office model is to be •considered as a part of the invention intended to have been covered by the original patent, unless the court can see, from a comparison of the two patents, that the invention which the original patent was intended to cover fairly embraced the things thus suggested or indicated in the original specification, drawings, or patent-office model, and unless the original specification indicated that those things were embraced in the invention intended to have been secured by the original patent.” In the case at bar, the original specification, being silent on the subject, most certainly did not indicate that the invention covered by this appeal was embraced in the invention intended to have been secured by the original patent.
The case of Corbin Cabinet Lock Co. v. Eagle Lock Co. 150 U. S. 38, 37 L. ed. 989, 14 Sup. Ct. Rep. 28, went even further than the case just cited. The first claim of the reissue patent was for a combination of a lock with a mortise. The drawings of the reissue were the same as those of the original patent, and the specification of the latter partially described the mortise, but the lock alone was claimed. The court, speaking through Mr. Justice Jackson, said: “It is settled by the authorities that, to warrant new and broader claims in a reissue, such claims must not be merely suggested or indicated in the original specification, drawings, or models, but it must further appear from the original patent that they constitute parts or portions of the invention which were intended or sought to be covered or secured by such original patent.”
We can see nothing inconsistent with this view in the case of Re Briede, 27 App. D. C. 298. There, there was no new matter introduced into the specification of the reissue patent, and the drawings were the same as in the original patent. The claim was for the same invention as that already secured, and was suggested by the specification when taken in connection with the drawings. , The court, differentiating from Parker & W. Co. v. Yale Clock Co., supra, said: “In the case last cited there was [427]*427new matter introduced into the specification of the reissue patent, and claims were based upon such matter. The original claims related to one part of the machine, the reissue claims to another part.” This distinction applies with equal force to the case before us.
Summing up the authorities, Walker, in his work on Patents, sec. 233, says: “Therefore no reissue claim can stand any longer upon a model alone, nor even alone upon a drawing of an original patent; and, indeed, neither models, drawings, nor descriptions, nor all of them together, can support a reissue claim, except where the description in the original letters patent shows that the invention covered by that claim was intended to be secured in the original.”
It is contended by counsel for Felsing that the former proceeding in the Patent Office is res judicata of the subject-matter of the present interference. Having held that Felsing evinced no intention to claim this invention, it must follow that it was not tried and determined by such proceeding.
Count 6, however, stands upon a different foundation. The principal element in this count is the fan casings having oppositely inclined sides or V-shaped portions. Felsing not only shows these in his drawings, but describes and claims them.
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Mr. Justice Van Orsdel
delivered the opinion of the Court:
The subject-matter of Eelsing’s appeal will first be considered. We are met at the outset with the question of his right to make claims corresponding to counts 1, 2, 3, 4-, 5, and 7. Not only were his original specification and claims silent in regard to the bottoms of the hoppers being open, but his drawings, on which he bases his right to the claims, are so vague and indefinite on this point as to lead the Primary Examiner to remark, when considering the motion to dissolve, “It is enough to say that, in my opinion, the study of it, with or without the aid of his specifications, would not suggest to the reader the subject of these claims. After reading Nelson’s patent, he might go searching Eelsing’s drawing, and fancy he could put such a construction upon some uncertain lines of it as would enable him to strain the open-bottomed hopper invention into it. But coming, fresh, to Eelsing’s patent, and without any prior suggestion as to the matter, I do [425]*425not think the patent would afford a clear and distinct suggestion of the matter. In fact, Felsing himself confesses to a material lack of this sort in his patent drawing, by presenting in his reissue drawing, an additional figure patterned closely after Nelson’s figure 4, all which is quite persuasive of an endeavor on Felsing’s part to level up his showing to Nelson’s.”
Section 4916 of the Revised Statutes, U. S. Comp. Stat. 1901, p. 3393, provides that, under certain conditions, the Commissioner, on surrender of a patent, may cause a new patent for the same invention to be issued to the patentee. “The specification may be amended so as to make it more clear and distinct; the claim may be modified so as to make it more conformable to the-exact rights of the patentee; but the invention must be the same.” Giant Powder Co. v. California Powder Works, 98 U. S. 126, 25 L. ed. 77. The phrase “same invention” has repeatedly been defined by the courts to mean whatever invention was described in the original letters patent and appears therein to have been intended to be secured thereby. Walker, Patents, sec. 233. Mere disclosure in the drawing is not sufficient to evidence such intention. This rule precludes the interpolation of new matter into the reissue application. “By 'new matter’ we suppose to be meant 'new substantive matter,’ such as would have the effect of changing the invention, or of introducing what might be the subject of another application for a patent.” Giant Powder Co. v. California Powder Works, supra. The case of Parker & W. Co. v. Yale Clock Co. 123 U. S. 87, 31 L. ed. 100, 8 Sup. Ct. Rep. 38, is directly in point. This suit was brought on a reissued patent. The original patent contained no description of the subject-matter covered by the first eight claims of the reissue, although the drawings might he construed to disclose the invention. “An examination of the Hotchkiss patent showed that the vital parts of the invention were not alluded to in the specification, or in the claims. Perhaps the fact that the clock had three wheels, and their position, might have been understood by an-expert, from drawing No. 6.” The Supreme Court, speaking of the right to make the claims in the reissue, said through Mr. Justice Blatehford: “In what was thus said in Seymour v. Os[426]*426borne, 11 Wall. 516, 20 L. ed. 33, there is no warrant for the view that ex vi termini, what was suggested or indicated in the original specification, drawing, or patent-office model is to be •considered as a part of the invention intended to have been covered by the original patent, unless the court can see, from a comparison of the two patents, that the invention which the original patent was intended to cover fairly embraced the things thus suggested or indicated in the original specification, drawings, or patent-office model, and unless the original specification indicated that those things were embraced in the invention intended to have been secured by the original patent.” In the case at bar, the original specification, being silent on the subject, most certainly did not indicate that the invention covered by this appeal was embraced in the invention intended to have been secured by the original patent.
The case of Corbin Cabinet Lock Co. v. Eagle Lock Co. 150 U. S. 38, 37 L. ed. 989, 14 Sup. Ct. Rep. 28, went even further than the case just cited. The first claim of the reissue patent was for a combination of a lock with a mortise. The drawings of the reissue were the same as those of the original patent, and the specification of the latter partially described the mortise, but the lock alone was claimed. The court, speaking through Mr. Justice Jackson, said: “It is settled by the authorities that, to warrant new and broader claims in a reissue, such claims must not be merely suggested or indicated in the original specification, drawings, or models, but it must further appear from the original patent that they constitute parts or portions of the invention which were intended or sought to be covered or secured by such original patent.”
We can see nothing inconsistent with this view in the case of Re Briede, 27 App. D. C. 298. There, there was no new matter introduced into the specification of the reissue patent, and the drawings were the same as in the original patent. The claim was for the same invention as that already secured, and was suggested by the specification when taken in connection with the drawings. , The court, differentiating from Parker & W. Co. v. Yale Clock Co., supra, said: “In the case last cited there was [427]*427new matter introduced into the specification of the reissue patent, and claims were based upon such matter. The original claims related to one part of the machine, the reissue claims to another part.” This distinction applies with equal force to the case before us.
Summing up the authorities, Walker, in his work on Patents, sec. 233, says: “Therefore no reissue claim can stand any longer upon a model alone, nor even alone upon a drawing of an original patent; and, indeed, neither models, drawings, nor descriptions, nor all of them together, can support a reissue claim, except where the description in the original letters patent shows that the invention covered by that claim was intended to be secured in the original.”
It is contended by counsel for Felsing that the former proceeding in the Patent Office is res judicata of the subject-matter of the present interference. Having held that Felsing evinced no intention to claim this invention, it must follow that it was not tried and determined by such proceeding.
Count 6, however, stands upon a different foundation. The principal element in this count is the fan casings having oppositely inclined sides or V-shaped portions. Felsing not only shows these in his drawings, but describes and claims them. While, in his original patent, he states the object of these V-shaped portions to be to deflect the air “more certainly and powerfully into the hopper or air trunk,” yet, having described and claimed them, he is entitled to the benefit of the function stated in his reissue application of preventing “a lodgment of material on the tops of the fan casings,” and “to provide a construction by which the chaff and finer stuff may be received directly from the screen shoes of the separator and passed through the fan casing, and from thence into the main chute.” It is contended that Felsing fails to describe and claim “rear hoppers.” While this is true, the construction shown necessarily forms “rear hoppers,” and Felsing is not barred from making such claim in his reissue application by his failure to designate his construction by the term “hoppers.” This count comes under the decision in Be Briede, supra.
[428]*428It was held by the Commissioner that the count just considered covers substantially the same invention as count 3 of the former interference. This count reads as follows:
“3. In a device of the class described, a frame, a hopper, fan casings supported in front of said hopper and discharging into the front end of the latter, said fan casings having upper inverted V-shaped portions and air intakes in the sides thereof, a shaft journaled upon the sides of the frame and extending through the fan casings, and fans upon said shaft within the fan casings.”
With the Commissioner, we must agree. The two counts are so nearly identical that the invention covered by count 6 must necessarily have been tried and determined by the prior interference.
Nelson has offered evidence to prove that the concession of' priority filed in the former interference was obtained from him by duress, and, for that reason, the judgment rendered thereon is not res judicata. It is unnecessary for us to consider this-evidence. The question is not properly before us. A judgment obtained by fraud or duress must be attacked in a direct proceeding, and not collaterally.
The decision of the Commissioner of Patents is affirmed, and the clerk is directed to certify these proceedings as, by law, required. Affirmed.
A motion by Samuel D. Felsing to recall the opinion and judgment and extend the time for filing a motion for a rehearing was overruled February 5, 1909.