a large elephant situated in the foreground of the scene. The mark
in registration No. 84,330 is the representation of an elephant stand-
ing upon his hind legs, holding a pair of shears and a piece of fabric.
The trade-mark in No. 84,331 is the representation of an elephant
fantastically dressed, jumping over a rope. The predominating fea-
ture in each of these marks, as in applicant's mark, is the representa-
tion of an elephant, and I am clearly of the opinion that the marks
bear such a resemblance that their simultaneous use would be likely
to lead to confusion in the mind of the purchaser.
The decision of the Examiner of Trade-Marks is affirmed.
ScHULZE V. Lennox,
Bedded July 5/, 191t.
181 O. G., 641.
iKTKBFERBifCB— Motion to Dissolve — Transmission.
The interpretation put upon the Issue of the interference by the Primary
Examiner Held to justify the transmission of a second motion to dissolve
the interference on the ground that the issue thereof is ambiguous and that
the counts have different meanings in the applications of the respective
parties.
Appeal on Motion.
MASSAGING DEVICB.
Messrs. Rummler cfe Rmrmder and Mr. Eugene 0. Brovm for
Schulze.
Mr. George L. Cragg for Lennox.
MooRB, Commissioner:
This case comes before me on appeal by Schulze from a decision of
the Examiner of Interferences refusing to transmit a second motion
to dissolve and on a petition by Schulze for the exercise of the super-
visory authority to review the decision of the Primary Examiner on
the first motion to dissolve, in which he held that Lennox had a right
to make the claims in issue.
The motion Schulze seeks to have transmitted alleges informality
in the declaration of the interference in that the claims are ambiguous
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230 DECISIONS OF THE COMMISSIONEB OF PATENTS.
and that the counts have different meanings in the two cases. The
necessity for this motion, according to Schulze, arises out of the hold-
ing of the Examiner in his decision on the first motion, in which the
counts were interpreted in a wholly-unexpected way. I am of the
opinion that Schulze's position on this point is sufficiently well
founded to justify the transmission of the motion to the Primary
Examiner.
The case does not present circumstances warranting the exercise of
the supervisory authority of the Commissioner to review the merits
of the Examiner's holding on the first motion — that Lennox has a
right to make the claims; but in view of the fact that the case is to
go before the Primary Examiner again in any event and the further
fact that the record shows that Lennox has assented to the dissolution
of the interference (see paper No. 5) the Primary Examiner is given
jurisdiction to reconsider the points urged in the first motion to
dissolve should he see fit to do so.
The decision of the Examiner is reversed.
Ex PARTE A. SiLz, Inc.
Decided AprU 26, 1912.
181 O. G., 542.
Label — MurnATiD Cakkot bb Rbgistebeo.
A label Held properly refused registration in which the goods are Indi-
cated on a paster attached thereto.
On Appeal.
LABEL FOB PBEPABED BACON.
Mr. Edward R. Finch and Mr. Lewis J. Doolittle for the applicant
BiiJjNGS, First Assistant Commissioner:
This is an appeal from the decision of the Examiner of Trade-
Marks refusing to register a label.
No error is found in the holding of the Examiner that the label is
not registrable. As pointed out by the Examiner, it is impossible to
determine from an inspection of the label whether it was published
with the word ^ Ham ^ thereon or with the word ^ Bacon " pasted
over the word " Ham," and therefore to determine to which the notice
of copyright applies. Furthermore, a mutilated label such as this is
clearly objectionable, since it does not make a permanent record, the
paster being liable to be displaced.
Nor does the notice of copyright on the label comply with the
requirement of section 18 of the copyright law. The words " Pre-
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DECISIONS OF THE COMMISSIONBB OP PATENTS. 231
pared for A. Silz, Inc.'' appear on the label ; but that is not a state-
ment that it was copyrighted by A. Silz, Inc.
The decision of the Examiner is affirmed.
Hett v. Swinnerton.
Decided July 11, 1911.
181 O. G., 542.
1. IKTKBFERENCE — REDUCTION TO PRACTICE — SIMPLE DEVICE.
A concrete-mold composed of a plurality of detachable frames Held not
Biich a simple device that the mere construction and assembling of a singlo
pair of units of the system is sufficient to establish the operativeness of the
whole device.
2. Same — Peioeity — Diligence.
Testimony reviewed and Held insufficient to establish that H., who was
the first to conceive the invention, but the last to reduce it to practice, was
diligent at the time S. entered the field and subsequently thereto and that
priority was properly awarded to S.
Appeal from Examiners-in-Chief.
MOLD FOB CONCBETE CONSTBUCTION.
Mr, Joseph H. Freeman for Hett. {Mr. William J. Dolan of
counsel.)
Mr. Walter R. Eaton for Swinnerton.
Tennant, Assistant Cormnissioner:
This is an appeal by Hett from a decision of the Examiners-in-
Chief affirming the decision of the Examiner of Interferences award-
ing priority of invention to Swinnerton, the senior party.
The invention involves certain improvements in molds or forms for
concrete construction, which are specifically set forth in the counts
of the issue, as follows:
1. A concrete mold composed of a plurality of detachable frames lined with
metal on one face, and means passing through the comers of the frames for
holding them rigidly spaced apart, said means also at the same time securing
the frames from lateral displacement
2. A concrete mold composed of a plurality of detachable frames, means for
Increasing and decreasing the dimensions of said mold, sheet metal lining the
inner f^ces of said frames, and bolts passing through the comers of abutting
frames for rigidly holding them spaced apart.
8. A concrete mold composed of detachable frames, a plate at the comer of
each frame, and means adapted to pass through the abutting comers of a plu-
rality of frames and cooperating with said plates for locking the frames
together.
4. A concrete mold composed of a plurality of frames, a plate secured to the
comer of each frame having a groove surrounded by a concentric boss, and
means adapted to embrace a plurality of adjacent bosses for securing the
frames together.
5i282*— 13 ^18
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232 DECISIONS OF THE COMMISSIONER OF PATENTS.
Swiimerton, the senior party, is a patentee, his patent having been
granted January 29, 1907. The application of Hett, the junior party,
was not filed until October 1, 1907. The burden is therefore upon
Hett to establish priority of invention beyond a reasonable doubt.
Both parties have filed printed testimony. The testimony* pre-
sented in behalf of Swinnerton was not discussed by the Examiner
of Interferences or the Examiners-in-Chief , these tribunals assuming,
as contended by Hett, that Swinnerton had failed to establish a date
of invention prior to his record date.
I have examined the testimony presented in behalf of Swinnerton,
who died on October 14, 1908, prior to the date upon which this
interference was instituted, and am of the opinion that it is not suffi-
ciently explicit to establish any particular date of conception or
reduction to practice prior to the date of filing of his application.
There are certain statements by Bimie, Hartmeyer, and Mrs. Swin-
nerton, which indicate that during the years 1904 and 1905 Swinner-
ton had an idea of constructing forms for concrete which could be
repeatedly used; but the testimony of these witnesses is not suffi-
ciently definite to indicate the date upon which he conceived the par-
ticular invention set forth in the issue of this interference.
It must therefore be held that Swinnerton is not entitled to an
earlier date of invention than the date upon which he filed the appli-
cation on which his patent issued — to wit. May 10, 1906.
The evidence presented in behalf of Hett clearly establishes concep-
tion, making of drawings, and disclosure in the latter part of 1905,
and that two cast-iron plates, Exhibits 5 and 6, were constructed
under his direction as early as March or April, 1906. These plates
were, according to the testimony of Ensslin, (Q. 10,) condemned by
Hett on account of being too thick and were sold as scrap-iron. They
were, however, recovered and presented in evidence, as above indi-
cated. It appears that in April, 1906, Hett assembled these two cast-
iron plates at the Kent Machine Works, in Brooklyn, in the presence
of Roehrich and Ensslin.
It also appears that in April, 1906, Hett caused the construction of
two plates or mold units having sheet-metal faces (Exhibits 11 and
12) and that these were assembled to form a section of a mold.
(Hett, Q. 26, Ensslin, Q. 21, and Roehrich, Qs. 40, 41.)
The testimony shows that in the latter part of March, 1906, Hett
ordered 100 sheet-iron plates, subsequently 20 plates and 200 cross-
arms, and at a still later date a sufficient number of plates and frames
to form 450 mold units. One of the 100 plates was produced,
(Exhibit 30,) and concerning this plate Hett testifies as follows:
Q. 87. When was this plate and the clamp bolts and stays similar to the ones
here produced by you, used in actual concrete construction?
A. About the 20th of May, 1909.
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DECISIONS OF THE COMMISSIONER OP PATENTS. 233
Q. 88. When was this plate made?
A. This plate is one of the original 100 sheets which were ordered on March
27, 1906, and hqd since been galvanized and finished in our shop, about the end
of October, 1908.
Q. 89. How do yon Identify this as one of the original 100 plates ordered by
you from Bruce and Cook?
A. Because these 100 plates were sized up at Kent's Works and were since
galvanized and the galvanizing is on the edges where they were finished; all
other plates have no galvanizing on the edges.
Q. 90. How did it happen that this plate was not completed in your shop
untU October, 1908?
A. Because we had to equip the shop and build special machinery to go into
manufacturing of these molds; we had to build special machinery that took us
four or five months to build, and the general shop equipment had to be arranged
for the manufacture which cost about six or eight thousand dollars. This ail
had to be done before we could go into the manufacturing in large lots.
He states that the plate was not used in actual concrete construc-
tion until 1909, although certain of the plates had been completed in
1908, for the reason that several hundred plates were required to
form the mold of sufficient size to cast the walls of a building he
intended to erect. He further states that at the time of taking testi-
mony he had about three hundred plates on hand and that the bal-
ance of the 450 plates had been destroyed by fire in the early part of
1909.
One excuse given for the long period consumed in constructing a
sufficient number of plates to make them available for practical use
was that he found it necessary to equip a shop for making and
assembling the plates. Another excuse was that he found it neoe.s-
sary before casting walls for a building of any considerable size to
construct a concrete-mixing machine which would deliver the con-
crete directly to a mold through a pipe or hose, in order that the
concrete would set properly. It appears, however, that such a con-
crete mixing machine was completed in the latter part of 1906 and
delivered to Hett about that time. (RD. Q. 82.)
The Examiner of Interferences and the Examiners-in-Chief held
that the constructing and assembling of the plates in April, 1906,
did not constitute a reduction to practice of the invention and that
Hett had not established due diligence connecting the conception of
his invention with the earliest actual reduction to practice, which
occurred in 1909, or even with the date upon which he constructively
reduced the invention to practice by filing his application, October
1, 1907.
It is contended in behalf of Hett that by the assembling of two
units of the mold the operativeness of the invention was sufficiently
established and that because he at about that time ordered a large
number of plates it should be assumed that the invention was then
complete.
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234 DECISIONS OF THE COMMISSIONER OF PATENTS.
In my opinion this contention is not well founded. The device is
not believed to be of such a simple character that the mere construc-
tion and assembling of a single pair of units of a system is sufficient
to establish the operativeness of. the whole. As pointed out by the
Examiner of Interferences —
it would take at least eight plates assembled by tie rods and stays in two par-
allel planes with four plates in each plane to bring all of the elements together
that cooperate in a practical assemblement of the molds, as an inspection of
the drawings of both parties will show. This is true because when assembled
four plates are designed to l>e gripped by a single cupped clamping nut.
It does not appear from the testimony that plates of an analogous
character had been previously used in such a manner that from the
known art it could be determined by inspection that such plates would
be successfully operative for the purpose intended. I am therefore
of the opinion that the mere assembling of two plates or mold imits
did not constitute a reduction to practice of the invention.
I am also of the opinion that Hett was lacking in diligence in
reducing his invention to practice. The devices are not of a complex
nature, and the period from January, 1906, to October, 1907, is an
unreasonable time for the construction of a sufficient number of such
plates to form a mold adapted for practical operation. However, it
does not appear that a sufficient number of such plates were com-
pleted and actually used until two years later. May, 1909.
Furthermore, it appeai-s that Hett had completed a mixing-ma-
chine in the latter part of 1906. The delay, therefore, incident to the
completion of a mixing-machine is not excused beyond such time, if
indeed the delay due to the preparation of a concrete-mixing device
can be considered in excuse of the failure to reduce the invention in
issue to practice.
It seems from the testimony of Roehrick (Q. 27) that patent draw-
ings for Hett's concrete-building mold were commenced on February
14, 1906, and finished on March 9, 1909, and that these drawings were
delivered to Joseph H. Freeman. Freeman testifies that in March,
3906, he had a consultation with Hett and about that time was in-
structed by Hett to file an application for patent. No excuse is given
either by Hett or his attorney why an application for patent was not
filed. Hett states (Q. 58) that for years he has been an inventor of —
• ♦ ♦ lithographic machinery, printing machinery, and so forth, and have
patents on machinery of that Icind numbering about one hundred and all over
the world; about sixty or more United States patenta
It would therefore seem likely that had this invention been satis-
factory in 1906, as now claimed, Hett would have promptly filed his
application for patent.
Under all the circumstances of the case I must agree with the de-
cision of the Examiner of Interferences and Examiners-in-Chief that
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DECISIONS OF THE COMMISSIONER OP PATENTS. 236
Hett has failed to establish either an actual reduction to practice of
the invention prior to Swinnerton's filing date or that he exercised
due diligence in reducing the invention to practice either actually or
constructively.
The decision of the Examiners-in-Chicf is aifirmed.
Christians v, Brunnbnschenkl v. Rosanz.
Decided July 27, 1912.
181 O. G., 819.
INTEBFEBBITCE — AMOTION FOB JUDGMENT — ^ADYEBSE DECISION — FINAL WITH EXAM-
INER OF INTEHFEBENCES.
A decision of the Examiner of Interferences denying a motion for Judg-
ment will not be disturbed unless a clear abuse of discretion is shown.
On PBTmoN.
GAB-OENEBATOB.
Messrs Davis cfe Davis for Christians.
Mr.^Sigmund Herzog for Brunnenschenkl.
Messrs. Munn <£ Co. and Messrs. Davis <6 Davis for Rosanz.
Moore, Conmiissioner:
This is a petition by Kosanz from the action of the Examiner of
Interferences refusing to render judgment on the record against
Brunnenschenkl. Such judgment was asked for on the ground that
the preliminary statement of Brunnenschenkl, while it alleged that a
machine embodying the issue was brought to this country prior to
the filing date of Rosanz, did not allege disclosure to others until a
date subsequent to the filing of the Rosanz application.
The decision of the Examiner of Interferences on the question of
entering judgment on the record against a party is not reviewable
upon a petition of this kind. There is clearly no such error of judg-
ment as calls for the exercise of the Commissioner's supervisory
authority. On the contrary, the action of the Examiner is believed
to be clearly right, in view of the decision of the court of appeals in
the case of Peters v. Hopkins and Dement^ (C. D., 1910, 278; 150
O. G., 1044; 34 App. D. C, 141.)
The petition is dismissed.
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236 DECISIONS OF THE COMMISSIONER OF PATENTS.
• Greene v. Covert.
Decided June 29, 1912.
ISl O. G., 819.
1. Interference — Motion to Dissolve — Decision of the Priiiart Bxaiiineb —
APPEAL— ;REH EARI NO .
Appeal from a decision of the Primary Examiner holding, on a motion to
dissolve, that the issue is patentable is prohibited by the rules, and the
question of granting a rehearing of such a motion rests within the Bxam-
iner's discretion.
2. Same — Same — Transmission — Delay in Bringing.
A motion to dissolve on the gl*ound that the moving party has no right
to make the claims Held properly refused transmission where the moving
party is under an order to show cause and the motion is not brought until
after the denial of his motion to dissolve on the ground that the issue is
not patentable.
On Petition and Appeal.
hame-fasteneb.
Mr, James L. Narris^ //*., for Greene.
Messrs. Bacon <& MUans for Covert.
Billings, First Assistant Commissioner:
This case is before me on a petition by Greene requesting that the
Primary Examiner be instructed to grant a rehearing on a motion to
dissolve the interference and on appeal by Greene from a decision of
the Examiner of Interferences refusing to transmit to the Primary
Examiner another motion to dissolve.
The motion to dissolve, upon which the Primary Examiner has
refused a rehearing, was brought by Greene in response to the order
to show cause why judgment should not be rendered against him on
the record in view of the fact that his preliminary statement did not
overcome the filing date of his opponent. The motion alleged unpat-
entability of the issue over the prior art, citing seven references. The
Examiner considered the most pertinent of these references and gave
his reasons for holding that the issue was patentable over each of
them.
In discussing one of the references he stated that his idea of the
advantage of the structure in issue over that of the reference under
discussion was that one of the hooks might be opened to admit a
chain-link while the other remained closed. Greene points out that
this particular advantage, while existing in the construction shown by
Ck)vert, does not reside in the form of fastener shown in his own
application. It is therefore alleged that the conclusion of the Exam-
iner that the issue is patentable is obviously an error and that the
rehearing should be granted as a matter of course.
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DECISIONS OF THE OOMMISSIONEB OF PATENTS. 237
The fastener covered by the issue consists of an S-shaped hook
with a longitudinally-moving locking-pin to cooperate with both
ends of the hook. The reference under discussion by the Examiner
at the time the statement above referred to was made shows an
S-shaped hook, with the pivoting locking member cooperating with
both ends. Other references show a C-shaped hook, with the longi-
tudinally-moving locking-pin cooperating with both sides of the hook.
An appeal from a holding of the Examiner that the issue of an
interference is patentable over the prior art is prohibited by tlie rules.
It is likewise well settled that the question of granting a rehearing
on any decision is a matter resting peculiarly within the discretion
of the tribunal rendering the decision. Greene's present petition, by
which he attempts to obtain a rehearing and have the Primary Exam-
iner instructed that his original decision was in error in a matter of
law, is in effect nothing more or less than an attempt to appeal from
his decision. He has twice applied to the Examiner for a rehearing, •
which has been denied. The holding of the Examiner that the issue
was patentable over the art is clearly not so manifestly wrong as to
require the exercise of the Commissioner's supervisory authority.
The structure called for by the count is admittedly not shown in the
reference, and it is easy to imagine other advantages — such as cheap-
ness of construction, ease of manipulation, etc. — which might flow
from the construction covered by the issue and which are not found
in the prior art.
The additional motion to dissolve brought by Greene, and which
the Examiner of Interferences refused to transmit, alleges that
Greene himself has no right to make the claim because it is " so nar-
row " and that the count has different meanings when applied to the
two applications involved. The motion was refused transmission on
the ground that it presents matter which should have been presented,
if at all, with the original motion and that there is no sufficient excuse
for the delay in presenting the motion.
While it is now permissible under the ruling of Hermsdorf v.
Drigga v. Schneider (C. D., 1908, 94; 133 O. G., 1189) for a party to
bring a motion on the ground that he himself has no right to make
the claim in issue, the reason of that rule does not apply in a motion
like the present, where the party has had access to his opponent's
application for considerably over two months before the motion is
brought and he has in the meantime attempted, without success, to
prevent judgment on the record against him by a motion to dissolve
of a different character. If it be true that Greene has no right to
make the claim in issue, this should have been discovered by him on
his first inspection of his opponent's case. The practice of delaying
the final disposition of interferences by repeated motions is highly
objectionable. In the present case the motion of Greene apparently
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238 DECISIONS OF THB CX>MMI8SI0N£R OF PATENTS.
arises out of the exigencies of the situation and can have no effect
but delay, since if he has no right to make the claim judgment may be
rendered against him in any event under the ruling in Podlesak and
PodUaak v. Mclnnerney (C. D., 1906, 558; 120 O. G., 2127; 26 App.
D. C, 399) and Gosper v. Gold, (C. D., 1911, 387; 168 O. G., 787;
36 App. D. C, 302.)
Tlie petition is denied and the decision of the Examiner of Inter-
ferences refusing to transmit the motion is affirmed.
KuROwsKi V, Ramset.
Decided July SI, 1912.
181 O. G., 820.
1. IlfTEKFEBENCE — MOTION TO AMEND ISSUE — TRANSMISSION OF.
While it is the geueral practice to refuse to transmit motions to amend
filed outside of the time allowed by the rules without a verified showing of
reasons excusing the delay, the transmission of such motions is generally
within the discretion of the Examiner of Interferences.
2. Same — Purpose of Rule 109.
The purpose of Rule 109 is to permit all subject-matter common to the
devices of the interferants to be determined in a single interference, and If
there is any question as to the sufficiency of the counts of the interference
as originally declared to cover the common subject-matter it is in the inter-
est of the parties to have the issue corrected before talLing testimony.
Appeal on Motion.
TYPE- WRITER.
Mr. Bumham C. Stickney for Kurowski.
Mr. George W. Ramsey pro se.
Tennant, Assistant Commissioner:
This is an appeal from a decision of the Examiner of Interferences
transmitting a motion by Kurowski to amend the issue of the above-
entitled interference by the addition of certain claims.
This motion was filed May 13, 1912, which is long after the expira-