CLAIMS Continued. 7. PATENTABILITY—“PRODUCT-USE" CLAIMS-MULTIPLICITY.—In regard to appellant's claims 4, 5, and 6 calling for an insecticidal and fungicidal composition having either naphthyl methyl thiocyanate or naphthyl methyl isothiocyanate as an active ingredient, and claims 7, 8, and 9 calling for a growth regulating composition having one or the other compound as an active ingredient, Held "that they are 'product-use' claims, and would only cause multiplicity where the product per se is held to be new and patentable."-*In re Jones, 304. 8. INTRODUCTORY CLAUSE.-"The general rule is that the introductory clause of a claim which states only the environment, intended use or purpose of the structure later recited in the claim is not a limitation on the subject matter. This, like most rules, is subject to exception. An examination of the authorities discloses that the exception governs when the introductory clause is that portion of the claim which gives meaning and vitality to it." *In re Rockwell, 461. 9. SAME. The introductory clause reading, "A power unit for intensifying and modulating hydraulic pressure, to be interposed as a unit in the hydraulic line between a master cylinder and an hydraulic motive means in a system of the character indicated," Held not to "serve as a limitation on the elements of the claims which follow it," but to be "merely a statement of the intended use of the power unit and a positioning thereof."-*Id. 10. CONSTRUCTION-"MEDIAN.". -"Appellant urges, and we think properly so, that the claims, calling as they do for a 'device for determining the median of a group of quantitative measurements,' for 'movable indicating means operatively connected to said operating means and seriately movable thereby in accordance with the movement thereof,' and for 'means for determining the median value of the goup of measurements indicated by the relative positions of said indicating means,' definitely limit the claimed invention to a determination of the median and eliminate or exclude the ascertainment of merely an average." *In re Flint, 400. 11. SAME "GROUP" AND "SERIATELY."-"We give the word 'group' the meaning which applies to more than two; to 'seriately,' its natural meaning-that is, the movement of the indicating means must be in series or succession, following one after another." *Id. 12. SAME "MEDIAN."—"The provisions 'A device for determining the median of a group of quantitative measurements' and 'means for determining the median value of the group of measurements indicated by the relative positions of said indicating means' necessarily imply that there must be more then two quantitative measurements." 13. "MARKUSH" TYPE.-Held improper to join an alcohol with an ester in a "Markush" group. *In re Ruzicka et al., 449. *Id. 14. "COMPRISING."-The use in claims of the term "comprising" Held equivalent to the use of the word "including." *In re Bert H. Lincoln and Alfred Henriksen, Deceased, by John W. Wolfe, Administrator de Bonis Non, 497. COMBINATION. See Double Patenting, 1; Invention, 3; Patentability, 20, 40, 59; Practice in the U. S. Patent Office; Scope of Patent, 2. COMMERCIAL SUCCESS. See Appeal to the US Court of Customs and Patent Appeals, 8; Invention, 11; Patentability, 14, 17, 21, 80, 82. COMMISSIONER OF PATENTS. See Appeal to the U. S. Court of Customs and Patent Appeals, 9, 12, 13, 15; Interference, 8, 66, 67, 68, 69; Suits under Section 4915, R. S. 3; Trade-Marks, 1, 18, 19, 20, 34, 38, 40, 41, 45, 47, 49, 73. See Interference, 1, 19, 28. COMPETITION IN TRADE. See Trade-Marks, 34. CONFUSION OF THE PUBLIC. See Interference, 12, 16, 18, 33, 37, 41; See Trade-Marks, 2 to 16 inclusive, 18, 33, 72, 73, 74, 75, 76, 77, 78. ONSTRUCTION OF CLAIMS. See Claims, 3, 10, 11, 12, 14; Interference, 3, 4, 5; Invention, 12. WORDS AND PHRASES-SURFACE-COATED."-"The contention of cousel for appellant that the term 'surface-coated,' as used in claims 15, 19, 20, and 21, definitely excludes an impregnated body is, in our opinion, untenable.' *In re Heritage, 454. CONSTRUCTION OF STATUTES. See Appeal to the U. S. Court of Customs and Patent Appeals, 9; Applications, 2, 3, 4, 5, 6, 7, Practice in the U. S. Patent Office; Scope of Patent, 3; Suits under Section 4915, R. S., 6. CONSTRUCTION OF TRADE-MARK STATUTES. See Trade-Marks, 3, 17, 18, 38, 48, 57, 60. CONTINUING APPLICATIONS. CON Interference, 41. See Applications, 2, 3, 4, 5, 6, 7, 8, 9; CO-PENDING APPLICATIONS. See Double Patenting, 3; Interference, 41. COPYING CLAIMS. See Interference, 62; Right to Make Claims, 2, 3; Sufficiency of Disclosure; Suits under Section 4915, R. S., 3. CORPORATE NAMES. See Trade-Marks, 56, 57, 58, 59. 1. CRIMES-FILING FALSE STATEMENTS.-The count of an indictment 2. SAME FORGERY.-"Other counts on which appellant was convicted charge that he uttered certain forged documents, in the Patent Office proceeding, 'with intent to defraud and injure.' These charges are within the forgery section of the District of Columbia Code, § 22-1401, 31 Stat. 1326, § 843. It was not necessary to name the persons whom appellant intended to defraud and injure." • Id. DAMAGE. See Criminal Law, 2; Suits for Infringement, 5; Trade-Marks, 14, 38, 43: Validity of Royalty Adjustment Act, 5; Violation of Antitrust Laws, 2. DATE OF FILING APPLICATIONS. See Applications, 9; Double Patenting, 1; Interference, 11, 12, 18, 29, 34, 37, 47; Trade-Marks, 63. DECISIONS OF THE BOARD OF APPEALS OF THE U. S. PATENT OFFICE. See Appeal to the U. S. Court of Customs and Patent Appeals, 10, 11, 12, 13, 15, 16, 17; Claims, 4. APPEAL RECORD.-"While the Board stated that the affidavit was filed, it did not say that it considered the same; and since it presumably acted in accordance with the said rules and did not remand the case to the Examiner, it proceeded without considering the affidavit. The affidavit therefore is not a proper part of the record here. See In re Christmann et al., 29 C. C. P. A. (Patents) 1037, 128 F. (2d) 596, 53 USPQ 634, 543 O. G. 3." *In re Bert H. Lincoln and Alfred Henriksen, deceased, by John W. Wolfe, administrator de Bonis Ñon, 497. DECISIONS OF THE SUPREME COURT OF THE UNITED STATES. See Violation of Antitrust Laws, 3. DEDICATION TO THE PUBLIC. See Double Patenting, 2. DELAY IN FILING APPLICATIONS. See Interference, 1. DESCRIPTIVE TRADE-MARKS. See Trade-Marks, 19, 20, 21, 22, 23. DISCLAIMERS. See Trade-Marks, 20, 28. DISCLOSURE OF INVENTION. See Appeal to the U. S. Court of Customs and Patent Appeals, 1; Double Patenting, 2; Interference, 6, 16, 21, 23, 31, 33, 38, 39, 61, Patentability, 25; Right to Make Claims, 1. DISCRETION OF THE COMMISSIONER OF PATENTS. See Applications, 4. DISCRETION OF THE COURT. See Suits for Infringement, 4. See Trade-Marks, 58, 61, 62. DIVISIONAL APPLICATIONS. See Interference, 41; Reissue Application, 7. DOMINANT PORTION OF TRADE-MAŘKS. See Trade-Marks, 2, 11, 13, 23, 24, 76. DOUBLE PATENTING. 1. PATENTABILITY.-Claims in appellant's application to a mounting strip Held substantially identical with claims of his patent, granted prior to the filing of his application, defining a combination of covers and mounting strips; and his patent and the claims of his application Held to present no difference in invention. *In re Phillips, 185. DOUBLE PATENTING-Continued. 2. SAME-DEDICATION.-"Since the involved application was not filed until several months subsequent to the issuance of appellant's patent, what he disclosed and did not claim must be considered dedicated to the public. Ely Norris Safe Co. v. Mosler Safe Co., 62 F. (2d) 524, 16 USPQ 328; Directoplate Corporation v. Donaldson Lithographing Co., 51 F. (2d) 199, 10 USPQ 62; Gladding-McBean Corporation v. N. Clark & Sons, 16 F. (2d) 50." *Id. 3. SAME. The appealed claims Held properly rejected as unpatentable over the claims of a patent issued to appellant upon a copending application; construing Traitel Marble Co. v. U. T. Hungerford Brass & Copper Co., 22 F. (2d) 259. *In re Ward, 522. DOUBT. See Interference, 44, 48; Patentability, 17; Trade-Marks, 63, 67; Validity of Patents, 6; Violation of Antitrust Laws, 2. DRAWINGS. See Interference, 32, 64; Patentability, 66; Violation of Antitrust Laws, 7. EARLIER AND LATER APPLICATIONS. See Interference, 34, 40. ELEMENTS. See Claims, 9; Invention, 1, 3; Interference, 21; Patentability, 20, 40, 59, 66, 78. EQUITY. See Interference, 65; Jurisdiction of the Court, 2, 3; Scope of Patent, 5; Suits for Infringement 3, 4, 5, 6; Suits under Section 4915, R. S., 4; Validity of Patent, 4, 5; Violation of Antitrust Laws, 13. EQUIVALENTS. See Patentability, 16, 70. ERROR. See Appeal to the U. S. Court of Customs and Patent Appeals, 5; Suits under Section 4915, R. S., 6; Trade-Marks, 38. ESTOPPEL. See Interference, 6, 7, 33, 61; Reissue Applications, 1, 6, 7. EVIDENCE. See Appeal to the U. S. Court of Customs and Patent Appeals, 2, 7; Applications, 9; Interference, 1, 4, 5, 12, 17, 18, 19, 29, 30, 31, 32, 36, 37, 42, 44, 45, 46, 50, 55, 56; Patentability, 14, 21; Suits under Section 4915, R. S., 4; Trade-Marks, 41, 45, 63, 64; Validity of Patents, 5, 6. EX PARTE QUESTIONS. See Trade-Marks, 17, 37, 39, 41, 45. FEDERAL RULES OF CIVIL PROCEDURE. See Violation of Antitrust Laws, 3. FEES. See Applications, 2, 3, 4. FIRST AND ORIGINAL INVENTOR. See Interference, 67, 68. FOREIGN INVENTIONS. See Interference 16. FORFEITED APPLICATIONS. See Applications, 2, 3, 4, 5, 6, 7, 8, 9. FORGERY. See Criminal Law, 2. FORMER DECISIONS CITED. See Appeal to the U. S. Court of Customs and Patent Appeals, 8; Applications, 2; Claims, 4, 6; Decision of the Board of Appeals of the U. S. Patent Office; Double Patenting, 2, 3; Interference, 1, 5, 6, 43, 45, 50, 51, 52, 55, 57; Invention, 17; Patentability, 5, 17, 55, 63, 64, 68; Right to Make Claims, 3; Scope of Patent, 1, 2; Trade-Marks, 2, 17, 36, 44, 46, 59, 63, 64, 69, 77; Validity of Patents, 3; Violation of Antitrust Laws, 6. FRAUD. See Criminal Law, 1; Scope of Patent, 5; Suits for Infringement, 6; FUNCTION. See Interference, 52; Invention, 1; Patentability, 6, 55, 59, 78. GOODS OF THE SAME DESCRIPTIVE PROPERTIES. See Trade-Marks, 8, 17, 18, 25, to 35, inclusive, 72, 73, 76. GRANT OF PATENT. See Applications, 3; Interference, 68; Suits under Section 4915, R. S., 1. INADVERTENCE. See Reissue Applications, 7. INDEFINITENESS. See Appeal to the U. S. Court of Customs and Patent Appeals, 17; Interference, 46; Patentability, 4; Sufficiency of Disclosure, 3; Trade-Marks, 64. INFRINGEMENT. See Interference, 65; Invention, 5; Suits for Infringement; Violation of Antitrust Laws, 6. INTERFERENCE. See Appeal to the U. S. Court of Customs and Patent Appeals, 2; Criminal Law, 1; Patentability, 32, 83; Right to Make Claims, 2; Suits under Section 4915, R. S., 3; Trade-Marks, 64, 65; Validity of Patents, 4, 5. INTERFERENCE-Continued. Abandonment of Invention 1. ABANDONMENT.-"In the absence of evidence pointing to suppression or concealemnt after reduction of an invention to practice, delay in filing an application for the invention so reduced to practice does not constitute abandonment of the invention. Brown v. Childs, 28 C. C. P. A. (Patents) 1229, 120 F. (2d) 350, 49 USPQ 713, 531 Ó. G. 283; Brown v. Edeler et al., 27 C. C. P. A. (Patents) 1091, 110 F. (2d) 858, 45 USPQ 181, 519 O. G. 222." *Lovell v. Peer, 227. Appeal to the U. S. Court of Customs and Patent Appeals 2. APPEAL-PARTIES.-Where the Board of Interference Examiners awarded priority to Colman, and Wheeler, Hoover and Dirkes appealed from that decision, but Kleinschmidt did not, Held that Kleinschmidt was not a proper part to the appeal. *Wheeler, Hoover, and Dirkes v. Kleinschmidt and Colman, Blanchard, Blanton, and Browne v. Kleinschmidt, Blanton v. Kleinschmidt, Wheeler, Hoover, and Dirkes v. Kleinschmidt, Blanchard, Blanton, and Browne v. Colman, Blanchard, Blanton and Browne v. Kleinschmidt and Colman, 259. Construction of Claims 3. CONSTRUCTION OF COUNTS.-Held that the term "connected," recited in the count, covered either a direct or indirect connection; and that appellant, in whose patent the count originated, had positively established this meaning of this term by so interpreting it during the prosecution of his application. *Ullstrand v. Coons, 196. 4. EVIDENCE. With respect to the term "finder switch" set forth in counts 2 to 7, in issue, Held that definitions proposed by the American Institute of Electrical Engineers "afford evidence that the term 'finder switch' has, in some instances, been interpreted as limited to the type of switch in which the called circuit seeks out a connection among a number of calling circuits." *Wheeler et al v. Kleinschmidt et al., Blanchard et al. v. Kleinschmidt, Blanton v. Kleinschmidt, Wheeler et al. v. Kleinschmidt, Blanchard et al v. Colman, Blanchard et al v. Kleinschmidt et al., 259. 5. SAME. "It is true that the record does not establish a universally adopted meaning of the term 'finder switches.' However, it does establish that the meaning of that term has been limited by at least some persons skilled in the art to a switch which is connected with a called line, and which searches over contacts connected with a number of calling lines. Accordingly, if the term 'finder switch' is not universally and definitely limited to the meaning ascribed to it in appellant's patent, it is ambiguous and must be interpreted in the light of appellant's patent where the counts originated. William G. H. Finch v. Garett Van der Veer Dillenbach, Jr., 28 C. C. P. A. (Patents) 1171, 1177, 121 F. (2d) 459, 49 USPQ 731,.530 O. G. 737." *Id. Estoppel 6. CONSTRUCTIVE REDUCTION TO PRACTICE-ESTOPPEL TO ATTACK.- Where appellee did not, during the motion period or later, challenge the right of appellant to make the count on appeal in his domestic application involved in interference, which application contained the disclosures of two German applications; and appellant relied upon one of these German applications for constructive reduction to practice Held that appellee was not estopped to raise the question that that application did not support said count. (Dreyfus v. Lilienfeld, 18 C. C., P. A. (Patents) 1539, 49 F (2d) 1062, 9 USPQ 522, 413 Ó. G. 862, distinguished.) *Engelbrecht v. Rogers, 145. INTERFERENCE-Continued. 7. RES JUDICATA. Where a prior interference, No. 68, 426, involving an original application of appellee Kleinschmidt and an application of Dirkes and Kimball, assigned to the Western Union Telegraph Company, was terminated by an award to Kleinschmidt based upon a concession of priority in his favor, Held that in the subsequent interference between an application for the reissue of the patent granted upon that original application of Kleinschmidt and a patent granted to appellants Blanchard, Blanton and Browne, also owned by the Western Union Telegraph company, these appellants were not estopped by judgment from raising the question of the operativeness of the telegraph system disclosed in appellee's reissue application. * Wheeler et al v. Kleinschmidt et al, Blanchard et al v. Kleinschmidt, Blanton v. Kleinschmidt, Wheeler et al v. Kleinschmidt, Blanchard et al v. Colman, Blanchard et al v. Kleinschmidt et al, 259. Jurisdiction of the Tribunals of the U. S. Patent Office 8. JURISDICTION OF BOARD OF INTERFERENCE EXAMINERS.-"The Board of Interference Examiners consists of three Examiners of Interferences directed by the Commissioner to proceed to determine the question of priority of invention whenever an application is made for a patent which in the opinion of the Commissioner would interfere with any pending application or any unexpired patent. Sec. 4904 R. S., U. S. C., title 35, sec. 52. Therefore the Board of Interference Examiners is the only tribunal of the Patent Office before which is tried the issue of priority." *Cohen et al v. Sparrow, Cohen et al v. Gille, 93. 9. JURISDICTION OF PRIMARY EXAMINER. "When motions are made under rules 109 and 122 they are determined by the Primary Examiner. Such determination is exclusively within the authority of the Primary Examiner and cannot be reviewed by the Board of Interference Examiners except as provided in the last sentence of rule 122 and in rule 130." *Id. 10. JURISDICTION OVER MOTION TO SUBSTITUTE AN APPLICATION.-Held that determination of a motion to substitute in interference a sole application of Cohen for the joint application of appellants was exclusively within the authority of the Primary Examiner; that the denial of such a motion by the Primary Examiner could not be reviewed by the Board of Interference Examiners; and that the Board of Interference Examiners could not be directed thus to act contrary to their authority and contrary to the law. *Id. Priority of Invention 11. PRIORITY.-Record reviewed and Held that the counts of the interference are supported by the disclosure of appellees' original application, and that since appellant claimed no date as early as the filing date of that application, priority properly was awarded to appellees. * Keyes v. Slayter et al, 59. 12. SCOPE OF DECISION.-"Ordinarily it would seem to be advisable for the Board of Interference Examiners to consider all of the evidence introduced by contending parties. However, we think that in the instant case it was justified in holding as it did, that is, that as appellant had failed to establish conception and reduction to practice prior to appellee's filing date, it was unnecessary to consider the evidence introduced by appellee." *Yates v. Gates, 80. 13. PRIORITY. Record reviewed and Held that priority properly was awarded to appellee. *Id. 14. SAME. Record reviewed and Held that priority properly was awarded to G., the appelle and senior party. *Fife v. Bright and Gray, 43. 15. SAME.-Record reviewed and Held that priority as to the count on appeal properly was awarded to appellee. *Engelbrecht v. Rogers, 145. 16. FOREIGN INVENTION-DATE OF INVENTION IN UNITED STATES.-The inventor of an intregrally woven ladder construction for Venetian blinds, who made that invention in England, Held entitled for conception and disclosure to the date when a letter specifying the problem to be solved, describing the solution, and enclosing a sample was received in this country. "French et al. v. Colby et al., 19. |