In all the references the friction-strip presents a plane or unbroken surface. When such a strip encounters any inequality on the jamb, although there will be two points of contact between the strip and the frame or jamb, yet the combined force of the springs will be distributed unequally between the two, the ratio of distribution being determined by the relative distance for the time being of the inequality from the two ends of the strip.

It is claimed that this difference between applicant's device and the references is an important one, both for the reason named and for others indicated in the argument, but which it is unnecessary to recount.

It is conceived that there is ground for his allegation that by the change in form he has modified the principle of operation, and that thereby he has produced a superior article of manufacture; and even if, practically, this should prove not to be the case, yet, as the claim is limited to this precise construction, its allowance would not in any way hamper the operations of other parties who may choose to adopt in their manufacture a different form from that shown by applicant. To allow a claim merely upon the ground that it can do no harm to the public would not be a sound rule of practice; but when doubt exists as to an applicant's right to a patent this consideration may very properly have weight in determining the action of the Office.

The decision of the Examiners-in-Chief is reversed, and the applicaut is adjudged entitled to a patent.

MILLER'S FALLS MANUFACTURING COMPANY, ASSIGNEE OF W. H. BARBER.-EX PARTE.

APPEAL FROM THE EXAMINERS-IN-CHIEF ON AN APPLICATION FOR THE REISSUE OF LETTERS PATENT FOR A DEVICE FOR HOLDING BITS AND OTHER TOOLS, GRANTED TO W. H. BARBER, MAY 24, 1864.

(Decided January 8, 1872.)

Patentability of changes in form and degree.

A change in degree merely, unaccompanied by any change in the mechanical function of the parts, is not patentable,

A mere modification of form, by which economy of material is effected, but which produces no change in the principle of operation, is not patentable, except as a design.

DUNCAN, Acting Commissioner:

This is an application by the Miller's Falls Manufacturing Company for the reissue of letters patent for a "Device for Holding Bits and other Tools," granted to W. H. Barber, May 24, 1864.

By the references cited in the case it clearly appears that it was not new with Barber to close the jaws of a tool-holder upon the inserted bit

or tools by means of an internally-threaded sleeve-nut provided with an interior tapering surface, which, as the sleeve is screwed down upon the central support or socket, is brought into contact with inclined faces upon the upper end of the jaws, and thus causes them to approach and grasp the interposed object.

Such an arrangement of devices is fully shown in Chamberlain's toolholder, patented February 7, 1854. Both in the invention involved in the pending application and in the reference there is an enlargement of the bore of the sleeve-nut below the orifice through which the tool is introduced. This is necessary in order to permit the jaws to fall apart sufficiently to release the tool when, by the longitudinal movement of the sleeve, the pressure upon the inclined faces of the jaws is removed, and to receive the tang of the new tool to be inserted.

This would seem to be fatal to the third claim of the reissue application, unless the claim can be saved by the fact that the Barber implement is specially adapted to receive tools with tangs of various sizes.

The claim is in these words:

The sleeve-nut C, provided with an internal chamber to receive the wedge-shaped portion of the jaws B B, when the nut is turned up so as to readily receive tools of variable-sized tangs, construced and operating substantially in the manner described and specified.

The theory upon which the appeal is taken is that Chamberlain is necessarily confined to the use of tools having tangs of a uniform size and shape, while Barber has specially provided for using those of widely differing shape and size. In considering this question it is to be remarked that no presumption in Barber's favor is created by anything found in his original specification, since this is as silent as is Chamberlain's patent as to any provision for using tools having tangs of different sizes. Barber is only entitled to such a claim as may appear warranted by the models and drawings. But, on an examination of these, it is believed not to be impossible to use tools with tangs of different sizes in the Chamberlain holder. It is true it does not permit so wide a range of selection in this particular as its rival; but that is a matter of degree merely. What we are seeking to ascertain is whether there is a fundamental difference between the two; whether the one, from its construction, is adapted to different-sized tools, while the other absolutely precludes their use. If there be no such radical difference, but only one of degree, there is no ground for the claim now presented. But, as we have seen, there is in the reference an enlargement of the bore of the sleeve below the orifice, and for the express purpose of allowing the jaws to fall apart. This is the same function as that claimed for the corresponding enlargement in the instrument under consideration; and in the one case, as well as in the other, this enlargement receives the technical designation of "chamber."

In the argument of the appeal much emphasis was laid upon the fact that in the application the body or barrel of the sleeve is contracted in its lower part to a smaller diameter than the part immediately adjacent to

the inclined faces of the jaws, and that a corresponding form is given to the jaws themselves, while in the reference the body of the sleeve is cylindrical throughout.

This difference in construction, however, has nothing to do with the subject of the claim at issue. By the change in form a slight saving of metal is effected, and it may be a somewhat neater shape given to the instrument. For this reason it might perhaps be the proper subject for a design patent. But the principle of the operation is unchanged, and as the claim upon which the appeal has been taken is concerned only with the mechanical function of the parts involved, the reference must be held to be a full anticipation.

The decision of the Examiners-in-Chief is affirmed.

DAWES AND FANNING.-EX PARTE.

APPEAL FROM THE EXAMINER OF TRADE-MARKS.

What may constitute a legal trade-mark.

The act of July 8, 1870, makes it the duty of the Commissioner to decide whether a proposed device is a legal trade-mark or not.

The act of Congress does not attempt to define what may coustitute a trade-mark, but directs the Commissioner not to register the mere name of a person, firm, or corporation.

The proposed trade-mark must not be one evidently intended or well calculated to deceive the public as to the true origin or character of the goods to which it is attached.

It must not consist merely of words or characters descriptive of the quality of the article to which it is attached, nor such as are generic in their signification.

A trade-mark must be of such character as, when attached to goods in the market, will distinguish them as to origin from others of the same class. To do this, it need not necessarily give the name of the person owning said mark, nor the place where the goods are made or sold.

LEGGETT, Commissioner:

The applicants are manufacturers of umbrellas covered with cotton, finished in imitation of alpaca; and they desire to have registered the number "140" as a trade-mark, to be attached to such umbrellas, and used in their advertisements. The examiner rejects the application on the ground that "the mere numerals '140' do not constitute a lawful trade-mark under the act of July 8, 1870."

The act referred to nowhere attempts to define a trade-mark. Section 79 excludes from the registration the "mere name of a person, firm, or corporation." The same section also says, "The Commissioner shall not receive and record any proposed trade-mark which is not and cannot become a lawful trade-mark." Beyond these limitations the law authorizing registration gives no intimation as to what is or what is not a

lawful trade-mark. This question must be determined by the teachings of common law and the rulings of the courts.

The following summary, I believe, embraces the statutory limitations, and the doctrines upon the subject as promulgated by the courts, and may be sufficient to guide the Office in distinguishing between lawful and unlawful trade-marks.

1. The mark sought to be registered must not be the mere name of a person, firm, or corporation.-Section 79 of act of July 8, 1870.

2. It must not be one evidently intended or well calculated to deceive the public as to the true character or origin of the article to which it is attached. Such a mark would be injurious to the public, and therefore its registry should be refused.-Christy vs. Murphy, 12 How. Pr., 78; Dale vs. Smithson, 12 How. Pr., 239; Pidding vs. Howe, 8 Simons, 477; Singleton vs. Bolton, 3 Doug., 293; Perry vs. Truefitt, 6 Beavan, 66; Hobbs vs. Francis, 19 How. Pr., 571.

3. It must not consist merely of words or characters descriptive of the quality of the article to which it is attached, nor such as are generic in their signification. Such words and characters are common property, and may be used for the same purpose by any person engaged in manufacturing or selling a similar article.-Amoskeag Manufacturing Co. vs. Spear, 2 Sand. S. C., 606; Stokes vs. Landgraff, 17 Bard. S. C., 609; Fetridge vs. Wells, 13 How. Pr., 388; Corwin vs. Daly, Upton, 191.

The names of persons, firms, or corporations, and generic names and words descriptive of quality, may be used in trade-marks, provided they are accompanied by original devices to which others have not an equal right; but in such cases the original devices really become the trademarks.-Fetridge vs. Merchant, 4 Abb. Pr., 158; Davis vs. Kendall, 2 R. 1., 569.

4. It must be of such character as, when attached to the applicant's goods in the market, will distinguish them as to origin from other goods of the same class. To do this it need not necessarily give the name of the person owning said mark, nor the place where the goods are made or sold. It is enough if the mark is of such character as to indicate to the purchaser that all articles bearing it come from one and the same

source.

The object a man has in view in adopting a trade-mark is to secure to himself the benefits arising from the superior merits of his goods over others of the same class. To do this he puts upon them a peculiar mark, that purchasers may be able to distinguish them in the market. It matters not to him nor to others whether the purchasers know either his name or place of business, provided that his goods have some mark by which they may be designated and inquired for.

The position taken by Upton in his work on trade-marks, that the trade-mark must show either the owner's name or place of business, or both, I believe is sustained neither by reason nor by the decisions of courts. He has evidently been misled by the use of the terms "source"

and "origin" by the courts in discussing this subject. It is clear to my mind that when the courts say the office of a trade-mark is to indicate the "source or origin" of goods, they do not mean thereby that the place of business or name of the owner must necessarily become a part of it.

In the case of Filley vs. Fassett, Justice Currier, of the supreme court of Missouri, says: "The books are full of authority establishing the proposition that any contrivance, design, device, name, symbol, or other thing, may be employed as a trade-mark which is adapted to accomplish the object proposed by it-that is, to point out the true source and origin of the goods to which said mark is applied." Under this proposition the court sustained as good and sufficient the words "Charter Oak," accompanied by the forms of oak leaves, as a trade-mark for stoves, although no other words or signs were used to express origin, source, or ownership; and the learned judge remarked: "The name and device selected by the plaintiff were adopted to point out the true source and origin of the stoves to which he applied them, and were, therefore, possessed of the requisite characteristics of a trade-mark.”—Am. Law Reg., N. S., vol. viii, 406, 407.

In the case of Ainesworth vs. Walmsley, 1 Law Rep., Eq. Cas., 252, the court says that "it is sufficient that the name or symbol in its application to the goods be so far original and peculiar as to be capable of distinguishing, when known in the market, one manufacturer's goods from those of another." The source and origin may be indicated by the originality and peculiarity of the trade-mark, whether it be words, figures, or symbols.

Justice Ingraham says, in the case of Wolfe vs. Goulard, 18 How. Pr., 67: "When a person forms a new word to designate an article made by him which has never been used before, he may obtain such a right to that name as to entitle him to the sole use of it as against others who attempt to use it for the sale of similar articles."

In the case of Burnett et al. vs. Phalon, 9 Bosw., 206, Justice Robertson says: "A manufacturer of or dealer in any goods has a right to designate them as being made or sold by him by a mark or device, such as Cocoaine;"" thus indicating clearly that a mere unmeaning device is sufficient to indicate origin to the full extent required by law.

In the case of Williams vs. Johnson, 2 Bosw., 6, Justice Woodruff says: "If the plaintiffs had chosen to stamp their soap with some figure or other impression having no other meaning than to distinguish their manufacture from that of others and had given it out as their mark, and by this discrimination soap of their manufacture had acquired reputation and sale, they would be plainly entitled to protection ;" thereby indicating that it is enough if the mark is sufficient to distinguish the goods to which it is applied in the market.

I do not deem it necessary to carry this discussion further at present. In a few cases the courts have expressed themselves as not entirely