adoption of the form selected by the complainant, except the incidental one of using it as a trademark. Its selection can hardly be said to be the result of effort even; it was simply an arbitrary chance selection of one of many well-known shapes, all equally well adapted to the purpose. To hold that such an application of a common form can be secured by letters patent, would be giving the act of 1861 a construction broader than I am willing to give it" It would seem from this language that if there had been "advantage," that is, utility in the adoption of the form of the rhombus, that it would have found more favor in the eyes of the Court. This subject has been well discussed in the opinion of Commissioner Foote in Crane _ex parte_. I concur in that opinion, except as to the recital of the former practice of the Office, which a careful examination has shown to be erroneous. The third question may be readily disposed of. Modes of operation or construction, principles of action, combinations to secure novelty or utility of movement, or compositions of matter, can hardly be said to be "shapes, configurations, or designs," but where the sole utility of the new device arises from its new shape or configuration, I think it may fairly be included among the subjects which the act of 1842 was designed to protect. The present case may, in view of the foregoing consideration, be disposed of without difficulty. Letters patent are asked, by applicant, for a new design for a rubber eraser, which consists in giving to the eraser a cylindrical body, with ends beveled to an edge. The claim is for the "cylindrical rubber eraser provided with a wrapper or case, as herein shown and described" In the body of the specification the applicant describes the mode of making the eraser, and he also enumerates its advantages over erasers of the ordinary forms. The Examiner does not object to the application because of the utility of the eraser, although the Board of Examiners in Chief seem to base their decision upon that point alone, but he pronounces the form already old in its application to artists' stumps, and he insists that the mode of composition or construction can form no element, for the claim for a design patent. In the latter statement he is undoubtedly right. These patents are granted solely for new shapes or forms, and the form being new it is immaterial by what process that form is attained. The composition of matter or the mode of construction is neither "design," "shape," nor "configuration," and must be protected, if at all, under a patent of another kind. I cannot say that the presence of such matter in the specification would be objectionable if description merely, but it could in no way be allowed to enter into, or to modify the claim.