trade or commerce and that therefore the first ground of refusal by
the Examiner was not well taken.
The decisioii of the Examiner of Trade-Marks is affirmed.
Ex PARTE BOGOOSLAVSKY.
Decided May 5, 1912.
179 O. G., 1107.
Appltcatton — Prosecttion — Change of Drawing.
Where a proposed change in the drawing depends on what the disclosure
is and not whether an undisputed disclosure is operative. Held that tlie
refusal of the Examiner to permit auch cliange is reviewabie on petition.
On Petttion.
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DECISIONS OF THE COMMISSIONER OF PATENTS. 183
AXTTOMOBILE-TBUNK.
Mesftrs. Wiedersheim da Fairbanks for the applicant.
MocMtE, Commissioner:
This is a petition that the Examiner be instructed to permit the
outline of the cover 11 to be shown in Figure 1 in accordance with
the sketch submitted in connection with applicant's communication
of August 2, 1911.
The Examiner refused to permit the suggested change in the draw-
ing on the ground that it constitutes new matter, and in his answer
to this petition he suggests that the question is one which should be
reviewed on appeal rather than a petition of this character, because
the claims now stand rejected on the ground that they cover an in-
operative device. The dispute here, however, seems to be as to what
the disclosure of the case actually is and not as to whether an undis-
puted disclosure is operative.
The trunk shown in the original drawings is disk or drum shaped*
and the so-called " cover " is situated in the upper half of one of the
circular faces. When released, it is supposed to be drawn down into
a recess occupying the lower half of this face of the disk. The Ex-
aminer held that such operation is impossible, because the lower edge
of the cover is the same diameter as the trunk, and therefore could
not be thus inserted in the semicircular recess provided, since this
recess has its greatest width at the upper edge and is there only equal
to the width of the cover itself.
The assumption of the Examiner, however, that the lower edge of
the cover is of as great a diameter as the trunk seems to be unwar-
ranted in view of the original specification, where it is stated that
" the cover is drawn straight down " into the recess provided when it
is released by the member 22, provided for that purpose. It is true
that there is nothing in the original disclosure to indicate the exact
shape or size of the cover, although the shape of the flap 15, which
is provided for " covering the edges of the cover," would suggest that
the cover had the outline which applicant now desires to indicate in
dotted lines.
It is believed that the description of the operation when taken with
the design of the flap 15 amply warrants the showing which appli-
cant desires to introduce in dotted lines.
The petition is granted.
BlL4DLET V. MlQGETT.
Decided July 26, 1911.
179 O. G., 1108.
L iHTBBriEBERCK—PRIOBrrY.
Efldence re?iewed and Held to establish tliat M. was the first to cmi-
ceive the inveotion in issue and the first to reduce the same to practloe,
priority Held, therefore, properly awarded to him.
04282'— 18 15
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184 DECISIONS OP THE COMMISSIONER OF PATENTS.
2. Same— Same — Diligence.
Where B., who was the last to reduce the invention to practice, ezperi-
mented with the invention during a period of eighteen months or two years
only in a desultory way, although he had at his command every facility
to promote expeditious work thereupon, Held that he was not diligent
and tliat he would not l>e entitled to an award of priority if he had estab-
lished a conception of the invention prior to that of M.
On PRiORrrr.
BOILEB-TUBE CLEANEB.
Mr. J. Morris Wilson for Bradley.
Messrs. Bacon and Milans for Miggett.
BiiiLiNQS, First Assistant Commissioner:
This is an appeal by Bradley from a decision of the Examiners-in-
Chief affirming a decision of the Examiner of Interferences award-
ing priority to Miggett on the following issue :
1. The l>oiler tube cleaner comprising a rotary body or carrier means for sup-
plying steam thereto, a steam-delivery nozzle mounted on said body and capable
of being moved into different angular positions with relation to the axis of the
body, means for rotating said body, and adjusting means independent of said
body-rotating means for shifting the nozzle relatively to the t)ody.
2. The combination of a steam boiler liaving horizontal tul)es, a wail opposite
the ends ofHJie l>oiler-tul>es having an opening extending lengthwise of the
tubes, a body or carrier rotatably arranged in said opening, means for supplying
steam to said body, a steam delivery nozzle mounted on said body and capable
of being moved into different angular positions relatively to the axis of the
body, means exterior to said wall for rotating said body, and means inde-
pendent of said body rotating means and exterior of said wall for adjusting
said nozzle with reference to the body.
3. The combination of a steam l)oiler having horizontal tul)es, a wall oppo-
site the ends of the boiler-tubes having an opening extending lengthwise of
the tul>es, a body or carrier rotatably arranged in said opening, means for
supplying steam to said body, a steam delivery nozzle mounted on said body
and capable of being moved into different angular positions relatively to the
axis of the body, means exterior to said wall for rotating said body, an ad-
justing shaft for said nozzle extending lengthwise of said body and provided
exterior to said wall with an operating device indei)endent of said body rotat-
ing moans, and means for opera tively connecting the nozzle with said shaft
In his preliminary statement Miggett alleges conception on April
6, 1906, disclosure on April 20, 1906, drawings the following day,
and a reduction to practice on May 1, 1906. His application was
filed December 16, 1907.
Bradley alleges conception October 15, 1905, drawings and dis-
closure on April 11, 1906, and a model and reduction to practice
November, 1907. His application was filed March 28, 1908.
The testimony submitted on behalf of Miggett clearly shows that
he conceived the invention at least as early as April 26, 1906. This
is not questioned by his opponent. It also shows that he built
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DECISIONS OP THE COMMISSIONER OF PATENTS. 185
and successfully operated a full-sized device as early as June 15,
1906. This also is not questioned; but it is contended on behalf
of Bradley that Miggett cannot be accorded this date for reduction
to practice because the test at which the device was proved suc-
cessful occurred at Walkerville, Ontario. This being in a country
foreign to the United Stntes, it is urged that no acts done there can
avail Miggett in proving a reduction to practice. It is well settled
that the making and using of an invention abroad cannot inure to
the benefit of an inventor against another applicant in this country.
{Bell V. Brooks, C. D., 1881, 4; 19 O. G., 290; Tucker v. Davis, C. D.,
1872, 188; 2 O. G., 224; and De Kando v. Ajmstrong, C. D., 1911,
413; 169 O. G., 1185; 37 App. D. C, 314.)
In the present case, however, the circumstances were somewhat
different from those in any of the cases cited. Here it is clearly
proved that Miggett conceived the invention in this country and
disclosed it to one Holmes, connected with the Powers Specialty
Company, of Detroit, Michigan, that the device which afterward
proved successful was made in accordance with this conception in
Detroit, and that some or all of the parties who made the test, which
occurred across the river in Canada, were citizens of the United
States and residing here at that time. It may well be questioned
whether under these circumstances the tribunals below were in error
in giving Miggett the benefit of reduction to practice by virtue of
the device so tested.
It appears, however, that other blowers embodying the invention
in issue were made immediately thereafter by the same company in
Detroit and sold in different parts of this country and had been so
made and sold up to the time of taking testimony. These devices
are referred to in the testimony as the " B 10, B 12 " type, the " B
27 " type, and the " B 31 " type, the difference between these types
being in details not affecting the present issue. Of the last two types
named it appears that in the neighborhood of two thousand were
sold. (Holmes Qs. 84 and 85.) One sale specifically referred to
was that to the United States Glass Company, Gas City, 111. The
order for this blower was received on July 24^, 1906, and it was
finished and installed in the August following. There are in evidence
two letters from the United States Glass Company stating that the
blower was satisfactory in every respect and ordering a second one.
Another blower was sold to the Detroit Cold Storage Co. about
August, 1906, installed the following winter, and proved satisfactory.
(Stewart Q. 65 and RD. Q. 100.)
Such evidence of commercial success is sufficient to establish that
the device was operative and practical. It is clear, therefore, that
Miggett must be accorded a reduction to practice at least as early as
the winter of 1906-7, and the relative position of the parties to this
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186 DECISIONS OF THE COMMISSIONEB OP PATENTS.
proceeding so far as conception and reduction to practice is con-
cerned will not be changed whether Miggett be credited with a reduc-
tion to practice by virtue of the device tested in Walkerville, Ontario,
or not, for Bradley alleges no earlier date than November, 1907, for
reduction to practice.
As pointed out by the tribunals below, Bradley has failed to prove
a conception of the invention prior to the completion of his Exhibit
No. 2 some time in May, 1906. This is a full-sized device, which
unquestionably embodies the issue, although its success was not at
that time proved and its details afterward changed. The Bradley
Exhibit No. 1, a sketch said to have been made on April 11, 1906,
clearly does not disclose the whole invention. In fact, the inde-
pendent movement of the jet and gear, the very gist of the present
invention, is not suggested therein.
It is urged by Bradley in his brief that —
obviously, the nozzle is not automatic, in its movement, and the independa:it
movement thereof is so elementary that it can be inferred, whereas if the
movement of the nozzle were not independoit of the body rotating means some
indication would appear in the drawing.
The burden of proof, however, is upon Bradley, and he cannot
prevail by virtue of any mere conjectures which might be made from
such an incomplete disclosure. The date of the completion of Ex-
hibit No. 2, which was some time in May, 1906, is therefore the earliest
that can be accorded to Bradley for conception. This is subsequent
to that which has been proved by Miggett.
Under his preliminary statement Bradley cannot be awarded a
reduction to practice earlier than November, 1907, which was several
months after that to which Miggett is entitled. The latter was,
therefore, the first to conceive and the first to reduce to practice, and
priority was properly awarded to him on this ground.
The tribunals below have both held, further, that Bradley has no
satisfactory proof of diligence which would enable him to prevail
in case he were found to be the first to conceive, and that, therefore,
Miggett must be awarded priority, even though Bradley were given
the benefit of the earliest date alleged by him for conception. With
this holding I agree. Bradley has a period of eighteen monUis or
two years to account for, and during this time it appears that he
experimented only in a desultory way, notwithstanding that he had
at his command every facility to promote expeditious work upon the
invention.
It is held that priority of invention was properly awarded to
Miggett.
The decision of the Examiners-in-Chief is affirmed.
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DECISIONS OF THE COMMISSIONER OF PATENTS. 187
Levesing Coffee Company v. Merchants Coffee Co.
Decided November 15, 1011.
179 O. G., 1109.
1, Tbadb-Mabks — "Hygeia" fob Coffee — Not Descriptive.
Tbe word " Hygeia " as a trade-mark for coffee Held not descriptive.
2. Same^Same— Abandonment.
Where a Ann had pot ont several brands of coffee. Including " Hygeia,"
and its books offered In evidence showed not only that for several years no
" Hygeia " coffee was sold, but the columns in the factory stock-book headed
** Hygeia " were used to enter various other items and on some pages the
word ** Hygeia " was writtwi across with the words " High Grade '' and
" D Rio," Held that not only a non-use of the mark, but an Intent to aban-
don the same, was established.
8. Same— lNTERi%BENCE — Pbiobity — ^Abandonment.
E}vidence Held to show that the mark in issue was abandoned by the pred-
ecessor in business of the L. Co. and priority awarded to the M. Co., which
began the use of the mark subsequent to this abandonment, but prior to the
use of the L. Co.
On Priority.
TBADE-MARK FOR COFFEE.
Messrs. Taylor c6 Hulse and Messrs. Steuart <& Steuart for Lever-
ing Coffee Company.
Mr. Robert Watson and Mr. John Watson^ Jr.^ for Merchants
Coffee Co.
Tbnnant, Assistant Commissioner:
This is an appeal by the Merchants Coffee Co. from a decision of
the Examiner of Interferences awarding priority of adoption and
use to the Levering Coffee Company and holding that it was entitled
to register the mark shown in its application.
The mark involved is the word "Hygeia" used as a trade-mark
for coffee. The Merchants Coffee Co. registered this mark on August
20, 1907. The application of the Levering Coffee Company was filed
December 15, 1909.
The Examiner of Interferences found that the Merchants Coffee
Co. began to use this mark in 1898 and has continuously used it sinci>
that time. He further found that the mark was adopted by E. Lev-
ering & Company, the predecessor in business of the I^evering Coffee
Company, in 1881, that the mark was used by the former down to
1897, and that, while there was a lapse in its use from that date
imtil 1902, when use was commenced by the Levering Coffee Com-
pany, it had not been established that the mark had been abandoned
and that therefore the Levering Coffee Company was entitled to the
benefit of the date of adoption and use of its predecessor.
The Levering Coffee Company contends that the mark as used by
the Merchants Coffee Co. is descriptive and that it is also deceptive
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188 DECISIONS OP THE COMMISSIONER OF PATENTS.
in that the picture of a hotel, which is said to be the picture of the
Hygeia Hotel, formerly at Old Point Comfort, appears on the labels
with the word '" Hygeia/' it being argued that one would naturally
associate the word "Hygeia" with the Hygeia Hotel and would
therefore be led to believe that there was some connection between
this hotel and the coffee upon which the mark is used.
The Examiner of Interferences held that the Levering Coffee
Company was not entitled to raise this question, since the Mer-
chants Coffee Co. was the registrant, but that the use by the Mer-
chants Coffee Co. was a valid trade-mark use.
It is not necessary to consider whether the question of a deceptive
use by a registrant can be raised by an applicant in interference
therewith, for there is no evidence of such deceptive use on the part
of the registrant in this case as would defeat his right to registra-
tion if he were an applicant. The word " Hygeia " is, in my opinion,
a good and valid trade-mark and not descriptive. In the case of the
Consolidated Ice Co, v. Hygeia Distilled Water Co. (151 Fed. Rep.,
10) the Court of Appeals of the Third Circuit said :
In short, " Hygeia " Is not " hygienic.*' The two words have not the same
meaning, and, while a monopoly of the latter could not be accorded to any one
without depriving others of its apposite use for ascribing healthfulness to their
goods, there is no more reason that the former should be exempted from ap-
propriation than any other nominative or merely designating term which
mythology or fiction has fabricated or made familiar.
The association of the word " Hygeia " on the labels with the
picture of the Hygeia Hotel could, in my opinion, deceive no one.
It is not necessary to review the evidence in detail as to the dat|p
of use established by the respective parties. This evidence was dis-
cussed in full by the Examiner of Interferences, and I agree with
his holding that the Merchants Coffee Co. has established adoption
of the mark in 1898 and continuous use since that time and that E.
Levering & Company adopted the mark in 1881 and used the same
down to 1895.
While there are some general statements of the witnesses that the
mark was continuously used by E. Levering & Company and the
levering Coffee Company, the books offered in evidence, and which
the witnesses themselves state would actually show what sales were
made, show diminishing sales from year to year until finally there
was but a single sale of coffee under the " Hygeia " brand by E.
Ijevering & Company in 1897. It is not denied on the part of the
Ijevering Coffee Company that no sales of coffee were made by that
concern under the brand " Hygeia " until 1902.
An examination of the factory stock-book of E. Levering & Com-
pany, which is in evidence as "Ijevering Exhibit Factory Stock
Book, No. 2," shows that E. levering & Company sold several brands
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DECISIONS OF THE COMMISSIONEB OF PATENTS. 189
of coflfee. The book is ruled in columns showing the amount of each
of these brands packed and delivered, the name of the brand ap-
pearing at the head of the column. Continuously up to 1895 the
book shows the packing and delivery of " E. L. C," " Rico," "Ajax,"
and " Hygeia " coffee. The sales in 1895 of " Hygeia " were very
small. There were but a few in 1896, and, as stated above, only one
in 1897, and none thereafter until 1902.
It is true that mere non-use of the mark will not establish abandon-
ment; but this book shows not only a non-use, but, it is believed, a
clear intent to abandon the mark, since the columns headed "Hy-
geia" are used to enter various other items, showing apparently
that the factory had been notified that no more " Hygeia " coffee
would be sold, and therefore there was no more need for these
columns. In some places the printed word " Hygeia " is written
across with the words " High Grade " and " D Rio." In the case of
Saxlehner v. Eisner <& Mendelson Co. (C. D., 1900, 362; 98 O. G.,
940; 179 U. S., 19, 31) the Supreme Court of the United States said:
To establish the defense of abandonment it is necessary to show not only
acts indicating a practical abandonment, but an actual intent to abandou.
Acts which unexplained would be sufficient to establish an abandonment may
be answered by showing that there never was an intention to give up and
relinquish the right claimed.
In the present case the books of E. Levering & Company show a
non-use of the mark, and, as pointed out above, the character of the
entries in this book is believed to show an intent to abandon the
mark. No member of the firm of E. Levering & Company was
called to explain why the books were used in this way if there was
no intent to abandon the mark or to testify that the mark actually
had not been abandoned. It does not appear on the record that the
members of this firm were unavailable as witnesses, and, in fact, one
of them was called by the Merchants Coffee Co. to testify as to
another point.
It is true that the records show that certain "Hygeia " labels were
kept in stock; but these appear to have been merely old labels which
E. Levering & Company had on hand at the time the use of the
mark was discontinued and which were transferred to the licvering
Coffee Company al(mg with the other property of E. Levering &
Company. Parr and Ewing attempt to show that the use of the
mark " Hygeia " by E. Levering & Company was discontinued be-
cause of a coffee war; but Parr's testimony is manifestly hearsay,
and Swing's seems to have been an afterthought, for it appears that
after his original testimony was given and when he was excused as
a witness to look up a certain letter which he had testified about he
dictated a statement to Parr as to this so-called coffee war, although
both he and Parr had been sworn as witnesses. It is also significant
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190 DECISIONS OF THB COMMISSIONEB OF PATENTS.
that Parr's subsequent testimony was practically identical with this
memorandum.
For the reasons above stated it is held that the mark in issue
was abandoned by E. Levering & Company prior to the time it was
adopted by the Merchants C!oftee Co., that the Levering Coffee Com-
pany did not conmience to use the mark until a subsequent date, and
since it is not entitled to any benefit from the use by its predecesor
priority of adoption and use should have been awarded to the Mer-
chants Coffee Co.
The decision of tJie Examiner of Interferences is reversed cmd it
is held that the Levering Coffee Company is not entitled to register
the mark shovm in its application.
Wbtmore and Niemann v. Putnam,
Decided October IS, 1911.
180 O. G., 321.
1. IlTTERFEBENCE— PbIOBITT — REDUCTION TO PBACTICB.
Where it is established that an adding-machine embodying the inyention
in issue was built by the assignee of W. and N., Held that the testimony
of witnesses highly skilled in the art that this machine was completely
tested and found satisfactory, subsequently sold, and no trouble expe-
rienced with it is sufficient to establish a reduction to practice as of the
date of the tests, although it was not stated exactly what kind of a test
was made, and no exhibits of work done on the machine at the time were
produced.
2. Same — Patentability op the Issue — Supebvisobt Authobitt of Oohmis-
SIONEB.
An interference will be dissolved by the Oommissioner in the exercise of
his supervisory authority on the ground that the issue is impatentable
only to correct an error which is so clear as to be api)areut to all« (citing
Qoss V. Scott, C. D., 1901, 80; 96 O. G., 842.)
Appeal from Examiners-in-Chief.
ADDING-MACHINB.
Messrs. Munday^ Evarts^ Adcock <& Clarke for Wet more and
Niemann.
Messrs. Hector, Hihhen <& Davis for Putnam.
Moore, Commissioner:
This is an appeal by Putnam from a decision of the Examiners-in-
Chief affirming the decision of the Examiner of Interferences award-
ing priority to Wetmore and Niemann.
The invention in issue relates to an improvement in adding and
listing machines and consists in the provision of mechanism whereby
such a machine may be " split " at certain desired points at the will
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DECIBIOKS 07 THE COMMISSIONER OF PATENTS. 191
of the operator — that is to say, an arrangement of the machine such
that it may be used in the normal way or so arranged as to print
parallel columns of figures independently of each other.
The issue of the interference is set forth in three counts, which
read as follows:
1. In a machine of the character described, the combination of a series of
impression means cooperatively related for the printing of ciphers to right of
numerals In decimal places where the amount to be recorded has no units,
with provisions for discontinuing the cooperative relationship between adjaf-
cent members of the series of impression means and manipulative means con-
irolllng said cooperative relationship and adjustable to effect discontinuance
thereof between one or another pair of adjacent members of the series of im-
pression means.
2. In a machine of the character described, the combination of a series of
separately acting impression devices; movable couplers between the members
of said series for securing cooperative action between the same in the printing
of ciphers; and means for selectively displacing said couplers.
3. In a multiple-order adding machine, in combination, adding and printing
mechanisms, automatic cipher-printing mechanism, and optionally operable
means whereby the automatic cipher-transfer to the right of either of a plu-
raUty of orders may be prevented.
The record of the case has been carefully considered, and no error
is found in the holding that Wetmore and Niemann were the first to
conceive and the first to reduce to practice this invention. Putnam
does not claim to have disclosed the invention prior to December 16,