In addition to the propositions of law advanced in 1,139, appellant challenges here, (a) the constitutionality of the entire trademark statute; (b) the jurisdiction of this court; and (c) the constitutionality of section 13 of the act of 1905.

With respect to the first objection, made in oral argument, though not in the brief, appellant is estopped. It prosecutes this appeal by virtue of the statute which it assails. Its presence here as an appellant is in effect an assertion on its part that the statute is valid. It cannot claim under the statute and at the same time denounce it as an unwarranted exercise of power by Congress. (Gaines & Co. v. Carlton, etc., Co., C. D., 1906, 731; 123 O. G., 1994; 27 App. D. C., 571; Gaines v. Knecht, C. D., 1906, 690; 123 O. G., 657; 27 App. D. C., 530; Wall v. Parrot Silver, etc., Co., 244 U. S., 407; Daniels v. Tearney, 102 U. S., 415, 421.) He who saws off the limb upon which he stands usually suffers a disastrous consequence.

When analyzed, the last two propositions comprehend but one question, namely, whether section 13 confers authority upon the Patent Office to cancel a trade-mark registered, as appellant's was, under the act of 1881 which did not expressly grant such authority, the argument being that by the registration the appellant acquired a vested right, and since, as it asserts, the act of Congress through which that right emerged did not provide for cancelation, it was not competent to take it away by subsequent legislation. Is this the correct interpretation of the act of 1881? First, we inquire what was granted to the registrant by that act. A certificate which, it says, "shall be prima facie evidence of ownership." (Sec. 7.) It adds nothing to the right of ownership (unless the jurisdiction conferred by it on Federal courts does), which existed independently of the statute; merely furnishes prima facie evidence of it. (Einstein v. Sawhill, C. D., 1893, 677; 65 O. G., 1918; 2 App. D. C., 10; Elgin Watch Co. v. Illinois Watch Co., C. D., 1901, 273; 94 O. G., 755; 179 U. S., 665; Sarrazin v. Irby Cigar, etc., Co., C. D., 1899, 404; 88 O. G., 387; 93 Fed. Rep., 624; Edison v. Thomas A. Edison, Jr., Chemical Co., 128 Fed. Rep., 1013.) As a general thing, a person has no vested right in a rule of evidence. (Thompson v. Missouri, 171 U. S., 380; 6 R. C. L., sec. 285.) The trade-mark statute simply arms the registrant with the presumption of ownership-relieves him of the burden of proof on that point.

Registration is essentially different from a patent, which creates a monopoly in the patentee that would not have any existence without it. (Bement v. National Harrow Co., C. D., 1902, 666; 101 O. G., 887; 186 U. S., 70; Jewell Filter Co. v. Jackson, 140 Fed. Rep., 340.) Consequently decisions holding that a patentee has a vested right which cannot be disturbed by legislation are not applicable.

Besides, it is by no means clear that the act of 1881 did not give the Commissioner authority to cancel an improper registration. Every registrant under that act took a certificate subject to the power of the Commissioner to decide any dispute—

between him and a subsequent applicant for the registration of the same markaccording to―

the practice of courts of equity of the United States in analogous cases.

If in such dispute the Commissioner held that the registrant had no right to the mark and that the applicant had, would it not follow necessarily on the analogy "of the practice of courts of equity" that he had the right to erase the wrongful registration, and thus destroy the prima facie evidence of which the applicant complained. If so, the appellant's registration in the present case was subject to the power of the Patent Office to cancel it in a proper proceeding, and that power was not withdrawn by the act of 1905. (See sec. 30.) But, however this may be, we have heretofore, upon full consideration, decided that section 13 of the act of 1905 giving to the Commissioner the power to cancel registrations in certain cases, applies to registrations under the act of 1881 and represents a valid exercise of Congressional power (Stamatopoulos v. Stephano Bros., C. D., 1914, 161; 200 O. G., 1394; 41 App. D. C., 590), and we perceive no reason in appellant's argument, or otherwise, for not adhering to that decision.

The decision of the Commissioner of Patents is affirmed.

Affirmed.

[Court of Appeals of the District of Columbia.]

KANE v. PODLESAK.

Decided May 6, 1918.

250 O. G., 609; 48 App. D. C., 11.

INTERFERENCE-RIGHT TO MAKE CLAIMS OF REISSUE PATENT ESTOPPEL BY

DELAY.

Where K. copies claim appearing first in P.'s reissued patent, two months after its issuance, but more than two years after the issuance of the original patent, Held K.'s application comes within the rule of estoppel laid down in the case of Rowntree v. Sloan, since the basis for the claims of the issue in this matter is to be found in the original patent of P., of which K. had notice from the date of its issue.

Mr. L. A. Williams for the appellant.

Mr. C. L. Sturtevant and Mr. E. G. Mason for the appellee.

McCoy, J.:

This is an appeal from a decision of the Commissioner of Patents awarding priority of invention to Podlesak.

A motion to dissolve the interference, filed by Podlesak, was made on the ground that Kane had no right to make the claims of the issue; first, because of laches and estoppel; second, because the claims, all of which were taken from a reissued patent of Podlesak, when properly construed would not read on Kane's structure; and, third, because the terms of the claims if expanded in meaning in an attempt to read them on the Kane structure, would also read upon devices of the prior art. The Commissioner of Patents set this motion for hearing as to the second ground, but not as to the first and third, saying that the alleged delay in the presentation of the claims by Kane would not constitute ground for dissolving the interference, and that Podlesak, being a patentee, could not allege that the claims of the issue should be more narrowly construed than the plain terms would

warrant.

The Law Examiner held that Kane had the right to make the claims and denied the motion for a dissolution. The Board of Examiners-in-Chief held on the authority of Rowntree v. Sloan (C. D., 1916, 192; 227 O. G., 744; 45 App. D. C., 207) that Kane was estopped from making the claims because of laches, stating that it was not necessary to pass upon the question of Kane's right to make the claims of the interference.

The Commissioner sustained the decision of the Examiners-inChief but on the ground that Kane was not entitled to make the claims. He called attention to the fact that the claims first appeared in the Podlesak reissue patent and that Kane filed his amendment including those claims within a month after the granting of the reissue patent; but he added that he was not disposed in the absence of experience with the rule laid down in Rowntree v. Sloan, supra, to acquiesce in the extension of it made by the Examiners-in-Chief by applying it to the present case.

Kane's original application was filed on February 2, 1910. His present application here in question and claimed to be a division thereof, was filed January 14, 1915. The application for Podlesak's original patent was filed April 15, 1912, and he obtained his patent March 4, 1913. On December 23, 1914, Podlesak applied for a reissue. A reissue patent was granted February 9, 1915. On April 19, 1915, Kane amended his alleged divisional application so as to make the claims of the present issue.

In Rowntree v. Sloan, supra, this court held that failure to make the claims of the issue on the part of one of the parties to an interference for three years after the grant of a patent to his adversary

estopped him from making the claims, because the life of the patent monopoly would be extended if the party seeking to make the claims should be finally successful, citing re Fritts. (C. D., 1916, 188; 227 O. G., 742; 45 App. D. C., 211.) Mr. Justice Róbb for the court said that the claims should have been made promptly and at least within the time allowed for amendment after Office action.

We are of the opinion that the Examiners-in-Chief were right in holding that the present application comes within the rule of the Rowntree case. A reissue patent must be for the same invention as the original patent but the patentee may redescribe his invention, .including however in the description and claims of the specifications only what was well described before or what was suggested or substantially indicated in his old specifications or drawings as properly belonged to the invention as actually made and perfected. (Marsh v. Seymour, C. D., 1878, 232; 13 O. G., 723; 97 U. S., 348.) The basis for the claims of the issue in this matter is therefore to be found in Podlesak's original patent of which Kane had notice from the date of its issue. Kane should therefore have moved promptly and not having done so is estopped to make the claims.

Were the case otherwise as to laches we should be inclined to affirm the decision of the Commissioner upon the grounds upon which he placed it; that is to say, because Kane has no right to make the claims. The Commissioner points out that both parties were claiming for improvements over the prior art and in slight particulars only but that Kane nowhere disclosed in his original or divisional application, until he came to make the claims of the Podlesak patent, that he was concerned with keeping the electrodes of the igniter normally separated or that he had invented what can be reasonably called an integral bracket.

The decision of the Commissioner is affirmed.

[Court of Appeals of the District of Columbia.]

CREVELING v. JEPSON.

Decided April 1, 1918.

256 O. G., 226; 47 App. D. C., 597.

1. INTERFERENCE-CONCURRENT DECISIONS OF THE PATENT OFFICE.

"The three tribunals of the Patent Office, all experts, concur in awarding priority to Jepson. Where this is so, especially in a case of this character, we have repeatedly held that we will not disturb the decision of the Patent Office unless manifest error has been committed.' 6 (Lindmark v. Hodgkinson, C. D., 1908, 540; 137 O. G., 228; 31 App. D. C., 612; Murphy v. Meissner, C. D., 1905, 592; 114 O. G., 1830; 24 App. D. C., 260; Stone v. Pupin, C. D., 1902, 550; 100 O. G., 1113; 19 App. D. C., 396; Podlesak v. McInnerney, C. D., 1906, 558; 120 O. G., 2127; 26 App. D. C., 399.)”

2. SAME MEANING OF THE CLAIMS CLEAR-CONSIDERATION OF THE PRIOR ART NOT NECESSARY.

Where the Examiners-in-Chief in their decision said: “If their meaning is clear and includes Jepson, no consideration of the prior art need be given. If, however, there is no point to the claims when read on Jepson, we do not understand that we are concluded from a consideration of the prior art," Held that as they found, in effect, that according to the normal meanings of the words used the claims read on the applications of both parties it cannot be correctly said that they erred in not considering the prior art.

3. SAME-MODIFICATION OF THE COMMISSIONER'S DECISION WITHOUT A REHEAR

66

ING.

Complaint is made because the Commissioner on the suggestion of Jepson modified his ruling so as to conform it to the holdings of the lower tribunals without first granting a rehearing. If his judgment was right, and we think it was, this irregularity, if it be one, is not of sufficient importance to constitute reversible error."

Mr. R. S. Blair, Mr. Morris Hirsch, and Mr. D. G. Haynes for the appellant.

Mr. Richard Eyre for the appellee.

SMYTH, C. J.:

Creveling appeals from a decision of the Commissioner of Patents awarding priority of invention to Jepson on all the claims of the issue, five in number. Three of those claims will sufficiently illustrate the character of the invention. They are:

1. The combination with a storage battery, a generator and regulating means therefor, of means for affecting the regulating means in response to voltage fluctuations, and means for affecting the regulating means in response to current fluctuations, said affecting means including means whereby the affecting means coöperate in the regulation of the generator.

2. The combination with a storage battery, a generator and regulating means therefor, of means for affecting the regulating means in response to voltage fluctuations, and means for affecting the regulating means in response to current fluctuations, said affecting means including electromagnetic means whereby the affecting means coöperate in the regulation of the generator.

3. The combination with a storage battery, a generator and regulating means therefor, of means for affecting the regulating means in response to voltage fluctuations, and means for affecting the regulating means in response to battery current fluctuations, said affecting means including electric means whereby the affecting means coöperate in the regulation of the generator.

The chief contention of Creveling is that Jepson cannot make the claims. The question thus presented is complicated and highly technical. The three tribunals of the Patent Office, all experts, concur in awarding priority to Jepson. Where this is so, especially in a case of this character, we have repeatedly held that we will not disturb the decision of the Patent Office "unless manifest error has been committed." (Lindmark v. Hodgkinson, C. D., 1908, 540; 137