EMPLOYEE OF THE GOVERNMENT. See Practice Before the Patent Office, 1. EMPLOYER AND EMPLOYEE. See Priority of Invention, 13. ENEMY COUNTRIES. See Conditions Existing by Reason of a State of War; Oaths. EQUITY RULE 58. See Costs. EQUIVALENTS. See Infringement, 4, 8; Particular Patents, 1. TEST-COMBINATION. The test of whether one element is the equivalent of another in the combination is whether a journeyman in the art would readily turn from one to the other with certainty of result. d H. Ward Leonard, Inc., v. Maxwell Motor Sales Corporation, 317. ERRORS. See Concurrent Decisions of the Tribunals of the Patent Office; Decisions of the Commissioner of Patents; Interference, 10; Tribunals of the Patent Office. ESTOPPEL. See Claims, 4; Interference, 7, 14; Priority of Adoption and Use, 3. 1. INTERFERENCE-DELAY IN COPYING CLAIM OF PATENT.-Where less than a year after the issuance of a patent a claim copied therefrom was presented in an allowed application, but was refused admission, and shortly thereafter but more than a year after the issuance of the patent the same claim was presented in a second application, Held that the ruling in Rowntree v. Sloan is inapplicable and that applicant is not estopped to make the claim. Barrett v. Hart, 62. 2. SAME RIGHT TO MAKE CLAIMS.-Where in an interference involving the applications of M., L. and G., G., and D. judgment was rendered in favor of D. and thereafter a patent issued to G. covering subjectmatter not shown or claimed in the application of D. or the applicacation of M. and after the issuance of this patent M. copied certain of these claims in an application other than the one involved in the interference, Held that he could not be refused these claims on the ground of estoppel. *In re Martin, 213. EVIDENCE. See Infringement, 6, 7; Invention, 5; Opposition to Registration of Trade-Marks, 1; Priority of Invention, 3, 4, 5, 6, 7, 11, 13, 18, 22, 23; Suits for Infringement, 1, 2; Unfair Competition in Trade, 2, 4. EXAMINER OF TRADE-MARKS. See Trade-Marks, 1. EXAMINERS-IN-CHIEF. See Cancelation of Claims, 1; Claims, 10; Jurisdiction of the Court of Appeals of the District of Columbia, 5; Rejection of Applications. EXCLUSIVE USE OF TRADE-MARK. See Property Rights. EXTENSION OF TIME. See Trading With the Enemy Act. EXTENSION OF TRADE. See Priority of Adoption and Use, 2. FEDERAL COURTS. See Jurisdiction of the Courts. FEES. See Conditions Existing by Reason of a State of War; Practice Before the Patent Office, 2, 3. FEES IN TRADE-MARK CASES. See Construction of Trade-Mark Statutes, 1. Specifications. FOREIGN REGISTRANT. See Interference, 4; REGISTRATION OF A FOREIGN TRADER-RIGHTS DEPENDENT ON HIS SUBMISSION TO THE JURISDICTION.-It is a condition of a foreign registrant's mark remaining on the register that he have an agent in this country on whom service may be had, and without this his mark involved in an interference may be held to have been abandoned FOREIGN REGISTRANT-Continued. and his registration may be canceled in his absence. Hudnut v. Phillips v. Mack, 74. 7 FORFEITED APPLICATIONS. See Abandonment of Applications, 1; Continuation of Applications. FORMER DECISIONS AFFIRMED. See Interferences, 13. FORMER DECISIONS CITED. See Claims, 7, 8; Concurrent Decisions of the Tribunals of the Patent Office, 2; Disclosure of Invention, 1; Mandamus, 1, 2; Priority of Adoption and Use, 1; Priority of Invention, 21; Property Rights; Suits under Section 4915, Revised Statutes, 1,2; Trade-Mark Rights. FORMER DECISIONS CONSTRUED. See Claims, 8; Estoppel, 1; Interference, 6, 13. FORMER DECISIONS DISTINGUISHED. See Government Use of Patented Inventions. FORMER DECISIONS OVERRULED. See Name of Applicant, 2; Opposition to Registration of Trade-Marks, 3. FRAUD. See Unfair Competition in Trade, 3, 5. FUNCTION OF TRADE-MARK. DESIGNATION AND PROTECTION.-The function of a trade-mark is simply to designate the goods as the product of a particular trader and to protect his good-will against the sale of another's product as his. ** United Drug Company v. Theodore Rectanus Company, 369. GENERIC CLAIMS. See Construction of Specifications and Patents, 4; Infringement, 3. GEOGRAPHICAL TERMS. See Registration of Trade-Marks, 15. See Prior Adjudica tion; Trade-Mark Infringement; Trade-Mark Interference; TradeMark Use, 2; Trade-Marks, 2. 1. DIFFERENT CLASS OF GOODS-ICE-CREAM CONES AND DAIRY PRODUCTS.Held that a trade-mark for ice-cream cones does not come in competition with a similar trade-mark for dairy products. * Borden's Condensed Milk Company v. Eagle Manufacturing Company, 133. 2. SIMILARITY OF GOODS.-The use of leather and rubber footwear is so general and so interrelated in use by the public that the purchaser should not be called upon to discriminate between the goods put out by one of two users of the same mark. *Boston Rubber Shoe Company v. Abramowitz, 137. 3. SAME PRIOR ADJUDICATION.-Blended whisky and straight whisky being goods of the same descriptive properties, a decree based on the use of the trade-mark on blended whisky is conclusive between the parties on the question of its use on straight whisky. **Rock Spring Distilling Company and Rosenfield v. W. A. Gaines & Company, 357. 4. SAME. Self-raising pancake flour and cornmeal Held to be goods of the same descriptive properties as flour. * Williams v. John B. A. Kern pany, 357. GOVERNMENT INSIGNIA. See Registration of Trade-Marks, 20. The proposition that the act of June 25, 1910, conferred on the GOVERNMENT USE OF PATENTED INVENTIONS-Continued. against the express provisions of the act itself. "Its purpose was not to weaken the rights of patentees, but to further secure them.” Nor does it confer upon contractors with the United States for furnishing apparatus a right to take without compensation the property of patentees; but, on the contrary, the contracting to perform duties for 'the Government imposes the responsibility to do so lawfully and without disregarding the rights of others, (patentees.) The contract does not vest the contractor with any right to exercise governmental powers, (distinguishing Crozier v. Krupp, C. D., 1912, 633; 178 O. G., 1154; 224 U. S., 290.) **William Cramp & Sons Ship & Engine Building Company v. International Curtis Marine Turbine Company and Curtis Marine Turbine Company of the United States, 336. GRANT OF PATENT. See Abandonment of Applications, 2; Delay in Applying for Reissue; Patentability, 2. ISSUANCE-PRESUMPTION.-The issuance of a patent creates a primia facie presumption of a patentable difference between the device for which a patent was issued and an earlier patented invention. d Wonder Mfg. Co. v. Block et al., 276. IMITATION. See Patentability, 4; Unfair Competition in Trade, 1. Construction of Specifications and Patents, 2, 3; Contracts, 1; Juris- ment. 1. CONTRACT FOR FURNISHING PATENTED APPARATUS FOR THE UNITED STATES-LIABILITY FOR INFRINGEMENT-ACT OF JUNE 25, 1910.Where the making of parts of apparatus by a contractor is in and of itself infringement, Held that the contractor is not protected by the supposition of a license resulting from the act of June 25, 1910. ** Marconi Wireless Telegraph Company of America v. Simon, 353. 2. SAME-SAME-QUESTION IS FOR THE LOWER COURT.-Where the question raised is whether or not the apparatus as furnished the Government by a contractor was a direct infringement or a mere contribution, Held that this is a question which it was the province of the court below to determine; but a mere contribution to infringement by the Government is not an illegal interference with the patentee's rights. **Id. 3. IMPROVEMENT PATENTS.-A device may be at the same time an infringement upon the relatively generic claim of a prior patent and also be a patentable improvement thereon, and there is no inconsistency, even presumptive, between these conclusions. General Electric Co. v. Cooper Hewitt Electric Co., 261. d 4. UNITING Two PARTS IN ONE.-While infringement is not avoided by forming in one part two elements of a patented device if the part thus formed secures the same results in substantially the same way as the two elements, a combination claim is not infringed where one of its elements is omitted without the substitution of an equivalent. a Detroit Showcase Co. v. Kawneer Mfg. Co., 281. 5. REVIEW INJUNCTION.-On appeal from an interlocutory injunction in a patent case the appellate court will go no further than to ascertain INFRINGEMENT-Continued. whether the court below abused its discretion. Therefore where it was not disputed that there was an infringement by defendant the question of the extent of the infringement will not be reviewed. d Id. 6. ACTIONS EVIDENCE.-Though an earlier patent was not set up in the answer or by notice, it is admissible in an infringement suit as evidence of the state of the prior art and to aid in construing the claims of the patent asserted to have been infringed. Id. d 7. SAME-SAME.-Though a prior patent was a mere paper patent and there was no evidence that the invention had ever been used, it is admissible on the question whether a device infringes a subsequentlyissued patent. Id. d 8. SUBSTITUTION OF ELEMENTS.-Where the combination used by defendant differs from that set forth in the original application of plaintiff by the substitution of an element not the equivalent of any element disclosed by plaintiff, infringement will not be held, even though the plaintiff's claims read on the defendant's device. H. Ward Leonard, Inc., v. Maxwell Motor Sales Corporation, 317. d INJUNCTION. See Infringement, 5; Priority of Adoption and Use, 3. 1. RIGHT TO MAKE THE CLAIM.-Where E., the junior party in a three-party interference, questions the right of B. to make a count of the issue, but does not challenge the right of G., the senior party, to make the claim, Held that Rule 130 is not applicable. *Elsom v. Bonner and Golde, 116. 2. JUDGMENT ON THE RECORD.-Record reviewed and Held that judgment on the record was properly rendered against E. *Elsom v. Bonner, 120. 3. EACH ELEMENT MATERIAL.-The rule confirmed that all limitations appearing in the counts of an interference will in interference proceedings in the Patent Office be regarded as material to the invention covered thereby. *Bijur v. Rushmore, 122. 4. DISCLOSURE IN BRITISH PROVISIONAL SPECIFICATION.-Contentions of Coats and Cameron as to count 2 carefully considered, but Held that Burt in his provisional specification sufficiently disclosed the elements of this count to enable one skilled in the art to understand their construction and mode of operation. *Burt v. Coats and Cameron. Coats and Cameron v. Burt, 131. 5. RIGHT TO MAKE CLAIMS.-Record reviewed and Held that the count of this interference and the claims proposed under Rule 109 cannot be predicated upon an earlier application of C. relied upon to carry his INTERFERENCE-Continued. date of invention back of a reference cited against C.'s application involved in this interference. Creveling v. Jepson, 2. 6. RIGHT OF APPLICANT TO CLAIMS OF A PATENT ESTOPPEL.-The failure of an applicant during a period of more than a year following the grant of a patent to assert his rights to claims in that patent Held to estop him from making them at all unless he shall satisfy the Commissioner that the delay was unavoidable. (Rowntree v. Sloan, C. D., 1916, 192; 227 O. G., 744; 45 App. D. C., 207, construed.) *Wintroath v. Chapman and Chapman, 154. 7. JURISDICTION OF THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.— Held that the Court of Appeals of the District of Columbia has jurisdiction to consider, on an appeal from an award of priority in an interference involving an applicant and a patentee, the question of the applicant's laches in copying the claims of the patent. *Id. 8. PRIORITY-RES ADJUDICATA.-The testimony in another interference between the same parties on "the same subject" adjudged to the appellee, being stipulated herein, "the questions of law and fact presented here (are) res adjudicata." *Thompson v. Storrie, 159. 9. USELESS APPEAL.-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." *Id. 10. PRIORITY-EDGE-FOLDING MACHINE.-Where there is a unanimity of decisions in the Patent Office Held that the burden is heavily upon the appellant to establish error. *Lautenschlager v. Glass, 162. 66 11. RIGHT TO MAKE CLAIMS-QUESTIONS NOT RAISED IN THE PATENT OF FICE ARE NOT BEFORE THE COURT.-The question whether L.'s construction embodies the issue not having been raised in the Patent Office, Held that this question is not before the court; but it was noted that L.'s garment responds to the terms of the issue. *Luckett v. Straub, 169. 12. RULE 75 CONSTRUED AND APPLIED TO WHAT CASES APPLICABLE.—An application should be rejected on such a patent if an interference in fact, based upon the claims in the application and the subject-matter disclosed in the patent which is germane to the invention claimed therein, the counts of which might be broader than or otherwise different from the claims in the application, provided they did not omit a material and substantial feature of those claims, would exist if both were applications, irrespective of the claims in the patent. Ex parte Thomas, 11. 13. 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. *Kane v. Podlesak, 207. INTERVENING RIGHTS. See Delay in Applying for Reissue, 2. |