Appellees assert that, however this may be, we have no right to consider laches in an interference proceeding, and they cite a number of decisions of this court to the effect that our jursdiction in such proceedings "is confined to a determination of the question of priority." Undoubtedly that is the law. But, what is meant by priority? Does it mean priority of conception; or of reduction, to practice with diligence; or reduction to practice without diligence; or all of these things and more? In determining the question of priority we have considered which party procured from the other the idea of the invention, (Milton v. Kingsley, C. D., 1896, 420; 75 O. G., 2193; 7 App. D. C., 531;) whether there had been a reduction to practice, (Stevens v. Seher, C. D., 1897, 761; 81 O. G., 1932; 11 App. D. C., 245;) lack of reasonable diligence, (Paul v. Johnson, C. D., 1904, 610; 109 O. G., 807; 23 App. D. C., 187;) Wickers v. McKee, C. D., 1907, 587; 129 O. G., 869; 29 App. D. C., 4;) concealment, (Matthes v. Burt, C. D., 1905, 574; 114 O. G., 764; 24 App. D. C., 265;) existence of reasonable diligence, (Yates v. Huson, C. D., 1896, 278; 74 O. G., 1732; 8 App. D. C., 93;) the effect of constructive reduction to practice, (Sherwood v. Drewsen, C. D., 1907, 642; 130 O. G., 657; 29 App. D. C., 161;) that one party was the agent of another, (Milton v. Kingsley, C. D., 1896, 420; 75 O. G., 2193; 7 App. D. C., 531;) Huebel v. Bernard, C. D., 1900, 223; 90 O. G., 751; 15 App. D. C., 510;) and the right of a party to make the claims of the issue, (Podlesak v. McInnerney, C. D., 1906, 558; 120 O. G., 2127; 26 App. D. C., 399; Wickers v. McKee, C. D., 1907, 587; 129 O. G., 869; 29 App. D. C., 4.) Priority in an interference proceeding is the ultimate. question for determination, but before it can be reached it may be, and usually is, necessary to decide one or more incidental or ancillary questions, as is shown by the decisions just referred to and others which might be cited. It is argued that, because we have also held that in an interference proceeding we would not decide whether there existed a statutory bar to the granting of a patent to the successful party, or whether either of the parties to the interference would ultimately have the right to a patent, we should not, if we follow the doctrine of those decisions, consider laches in this case. This does not follow. There is a clear distinction between those questions and laches as it arises in this case. It relates to a different purpose. The dispute in an interference case is in respect to which one of the disputants is entitled to priority concerning a given alleged invention. (Foster v. Antisdel, C. D., 1899, 413; 88 O. G., 1527; 14 App. D. C., 552; Prindle v. Brown, C. D., 1904, 680; 112 O. G., 957; 24 App. D. C., 114.) Let us suppose that A and B are the contestants. If it be held that as between them A conceived and reduced the invention to practice in 1915 but that B never thought of it until 1916, it would profit B nothing to show that A could not secure a patent for the invention, either because it was not patentable, or his right to a patent was barred by the statute of public use, or for any other reason. Therefore such a showing would be immaterial. These infirmities in A's situation would present questions between him and the Patent Office, in which B as an applicant would have no interest whatever. They would arise in a proceeding different from an interference proceeding, and one in which the parties were not the same. Consequently our holdings that the bar of the statute of public use, lack of patentability, and similar questions are not justifiable in an interference proceeding, is in no way inconsistent with the holding that laches is. There is nothing in the record to show that the Chapmans' delay in presenting their application was unavoidable. In view of what has been heretofore said, the decision of the Commissioner is reversed, and priority as to all the claims of the issue is awarded to John A. Wintroath. Reversed. [Court of Appeals of the District of Columbia.] THE THOMAS MANUFACTURING COMPANY v. THE AEOLIAN COMPANY. 66 Decided February 4, 1918. 249 O. G., 505; 47 App. D. C., 376. 99 1. TRADE-MARKS-SIMILARITY-" ORCHESTROLA AND "ORCHESTRELLE. 'Orchestrola,” for phonographs, Held confusingly similar to “Orchestrelle," for automatically operated organs. 2. SAME-SAME-USE OF ANOTHER'S REPUTATION. An opposition to registration of "Orchestrola' is properly sustained where it appears that another had used "Orchestrelle" for automatically operated organs and now also deals in phonographs. One familiar with the "Orchestrelle " organ would be likely to think that a phonograph marked "Orchestrola " was produced by the same maker. Mr. H. J. Jacobi and Mr. Parker Cook for the appellant. SMYTH, C. J.: The Thomas Company in 1916 adopted as a trade-mark for phonographs the word "Orchestrola,” and soon thereafter applied for its registration. The Aeolian Company opposed the registration and asserted that in 1900 it registered the word "Orchestrelle" as a trade-mark; that the goods for which the Thomas Company was seeking to register "Orchestrola "-phonographs or talking-machines-were of the same descriptive properties and were comprised 84150°-1913 in the same general class of merchandise as the goods upon which it had used its registered trade-mark; and that the use of the word proposed by the Thomas Company would lead to confusion. The parties stipulated that the Aeolian Company had made and sold organs and playing mechanisms therefor since prior to 1894; pianos and playing mechanisms therefor since prior to 1895; and phonographs since 1914; also that it had applied the trade-mark "Orchestrelle " to organs comprising means for manual operation as well as automatic operation through perforated music sheets and has applied the same trade-mark to said music sheets; and that those instruments "bearing its trade-mark have been widely and largely advertised and sold" throughout the United States. Would the use of "Orchestrola " by the Thomas Company, in the language of the statute be likely to cause confusion or mistake in the mind of the public, or deceive purchasers? (34 Stat., L., 1251; 37 Stat. L., 649.) If so, it should not be registered. This court has frequently held that, because the field of selection is so very wide, practically unlimited, there is no good reason why a person should be permitted to select a trade-mark similar to one already in use by another engaged in a business of the same general nature, where the likely effect would be to lead to confusion concerning the goods themselves or their origin. (Wayne County Preserving Co. v. Burt Olney Canning Co., C. D., 1909, 318; 140 O. G., 1003; 32 App. D. C., 279; Phoenix Paint and Varnish Co. v. John T. Lewis & Bros. Co., C. D., 1909, 303; 139 O. G., 990; 32 App. D. C., 285; Kaut-Reith Shoe Co. v. International Shoe Co., C. D., 1917, 162; 239 O. G., 939; 45 App. D. C., 545; Goodrich Drug Co. v. Cassada Mfg. Co., C. D., 1917, 133; 237 O. G., 918; 46 App. D. C., 146.) In the Goodrich case it was held that "Velvetina" applied to the same character of goods as "Velvelite " would be likely to cause perplexity in trade and therefore was not registerable. Assume that a person who had a good opinion derived from use or otherwise of an automatically operated organ produced by the Aeolian Company and marked "Orchestrelle" desires to purchase a phonograph (the Aeolian Company, as we have seen, now produces phonographs) and is shown one marked "Orchestrola," would he not be likely to think it was produced by the same company as produced the organ and buy it on that account? Perhaps if the two instruments were placed side by side, one marked "Orchestrelle" and the other "Orchestrola," he would be able to detect the difference between the marks; but where they were not so placed and he was compelled to rely upon his memory only, unless he pos sessed one remarkably accurate in its impressions-the law considers the ordinary, not the extraordinary in cases like this-we believe he would not distinguish the one from the other. To be sure, they have points of differences, but the points of resemblances dominate and give character to the terms. (Swift v. Dey, 4 Rob., N. Y., 611; Florence Mfg. Co. v. Dowd, 178 Fed. Rep., 73.) Merely "arguable differences" are not enough to save from condemnation the encroaching mark. (Paris Medicine Co. v. Hill, 102 Fed. Rep., 148.) We entirely agree with the Assistant Commissioner that the two words are "confusingly similar" and would be likely to mislead not only as to the goods themselves but also as to their source of manufacture, and hence his decision is affirmed. Affirmed. [Court of Appeals of the District of Columbia.] THOMPSON v. STORRIE. Decided February 4, 1918. 249 O. G., 506; 47 App. D. C., 383. 1. INTERFERENCE-PRIORITY-RES ADJUDICATA, "the The testimony in another interference between the same parties on same subject" adjudged to the appellee, being stipulated herein, "the questions of law and fact presented here (are) res judicata." 2. SAME-USELESS APPEAL. 66 Where a case involving the same subject-matter and submitted on the same testimony had been decided in a former interference in favor of the appellee, we are at a loss to apprehend upon what theory of law the appellant has brought the cause here, thereby harassing the appellee and unnecessarily consuming our time." Mr. H. A. Toulmin for the appellant. Mr. A. F. Kwis and Mr. Robert Watson for the appellee. SMYTH, C. J.: This is an interference case involving an invention for a shockabsorber. Priority was awarded to William Storrie, the junior party, by all the tribunals of the Patent Office. No testimony was taken but the parties stipulated that the testimony in another case between the same parties comprehending the same subject should be used. The decision in that case was in favor of Storrie (C. D., 1917, 222; 245 O. G., 845; 46 App. D. C., 324) and is a dominant factor in this cause which the appellant makes no attempt to overcome, but ignores. It has made the questions of law and fact presented here res judicata. (Nalle v. Oyster, 36 App. D. C., 36, affirmed on this point in 230 U. S., 165; Southern P. R. Co. v. United States, 168 U. S., 1, 42, and cases cited.) In view of this we are at a loss to apprehend upon what theory of law the appellant has brought the cause here, thereby harassing the appellee and unnecessarily consuming our time. The Commissioner was right in awarding priority of invention to Storrie, and his decision is affirmed. Affirmed. [Court of Appeals of the District of Columbia.] IN RE KOHLER. Decided February 4, 1918. 249 O. G., 1223; 47 App. D. C., 373. 1. PATENTABILITY-JUDGMENT OF THE PATENT OFFICE TRIBUNALS. The concurrent judgment of the several tribunals of the Patent Office on the matter of patentable novelty "should not be overturned except where it is manifest that it rests on error." 2. SAME-SAME-RESOLVING DOUBTS. While in case of doubt on the point of invention it should be resolved in favor of the applicant, yet "we are not permitted to doubt where the Patent Office tribunals are unanimous and there is nothing tending to show clear error on their part." Mr. C. T. Milans for the appellant. Mr. T. A. Hostetler for the Commissioner of Patents. SMYTH, C. J.: Kohler asserts that he invented a sanitary bathtub with certain features disclosed in his claims of which there are eight. We give the first which is characteristic of the others: An enameled iron bathtub provided with an integral enameled flat rim approximately rectangular in shape with one or more of the edges of the rim continuing downwardly to a plane near the bottom of the tub to form an inclosure integral with the tub and adapting the integral rim of the tub to be tiled into the floor and walls of a room. All the tribunals of the Patent Office denied the patentability of the claims over the six references appearing on the record of the Patent Office. This placed a heavy burden on Kohler, for we have repeatedly held— that where patentable novelty has been denied by all the expert tribunals of the Patent Office, it is incumbent upon one appealing therefrom to make out a clear case of error in order to obtain a reversal. (In re Beswick's appeal, C. D., 1900, 294; 91 O. G., 1436; 16 App. D. C., 345; see also in re Smith's appeal, C. D., 1899, 313; 87 O. G., 893; 14 App. D. C., 181; Seeberger v. Dodge, C. D., 1905, 603; 114 O. G., 2382; 24 App. D. C., 476. This is as it should be. The members of the different boards are specialists and their judgment should not be overturned except where it is manifest that it rests on error. This does not ignore the other rule that where there is doubt it should be resolved in favor of the applicant. (In re Thomson, C. D., 1906, 566; 120 O. G., 2756; |