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In re OUTCAULT.

(Circuit Court, S. D. New York.

November 15, 1906.)

Patents — Contest in Patent Office — Poweb of Coubt to Issue Subpcena' • Duces Tecum.

Rev. St. § 4906 [U. S. Comp. St. 1901. p. 3390], providing for the issuance by the clerk of any federal court of subpoenas for witnesses within the district for the taking of testimony for use in any contested case pending in the Patent Office, does not authorize the issuance of a subpoena duces tecum; nor is such subpoena authorized in such proceeding by Rev. St. § 716 TU. S. Comp. St 1901, p. 580], which deals only with writs necessary for the exercise by the courts of their own jurisdiction.

On Petition for Order to Punish for Contempt.

Benno Eoewy, for the motion.

W. A. Megrath, opposed.

LACOMBE,. Circuit Judge.

The provisions of section 4906, Rev. St. [U. S. Comp. St. 1901, p. 3390], are broad enough to cover the issuance of subpoena in this proceeding, which certainly is “a contested case -pending in- the Patent Office.” That section, however, does not authorize the issuance of a subpoena duces tecum; nor can any such authorization.be found in section 716 [U. S. Comp. St. 1901, p. 580], which deals only with writs necessary for the exercise of the court’s own- jurisdiction to hear and determine a controversy before it. The decision of Judge Dallas in Ex parte Moses (C. C.) 53 Fed. 346, is approved and followed.

The petitioner may take an order holding parties in contempt for failure to- “appear and testify,” and a fine of $50 to the United States is imposed, in each ca?e.. If respqndents. wish to-review, this decision, *229provision will be made for suspending payment of the fines pending appeal.

The application to punish for failure to produce books and gapers is denied.

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