from the change such that the extraction of the solubles in corn is effected without loss of any of the contained starch, and in view of the fact that the process is worked upon organic matter, not wholly by mechanical means, and especially in view of the fact that the change in the process effects a marked gain in result, diligently sought but not before found, it is thought that the change surpasses the bounds of mere degree and was neither obvious nor within the reach of mechanical skill, and by consequence that claims 1 and 2 are allowable.

Claims 3 and 4 depend for novelty and patentability over the references upon treating the extract with an alkali, claim 3 being limited to treating a sterilized extract. The advantage of the alkali treatment after steeping, removing the extract from the crushed grains, sterilizing the extract, and removing the coagulate, but before adding the motheryeast and fermenting the extract, are clearly set forth in the specification. This step of the appellants is not found in the reference, unless in the use of a small amount of alkali in the steeping process. At this stage it is employed in the patent, where an acid may as well be employed, to aid in the extraction of the soluble parts. If alkali were used in steeping and the precise amount necessary to neutralize the acids afterward developed were employed, it would be unnecessary to further treat the extract with alkali after the clear extract were obtained; but since no test could indicate the precise amount of alkali which would be required in the extract to free it from acidity as early as the steeping stage of the process, and since this special alkali treatment is employed to render the extract more favorable to the growth of the yeast cells, and not, as in the patent, to aid in the extraction of the solubles from the corn, and was found to be an advantage, it is thought that this is enough to confer patentability upon claims 3 and 4.

Claims 5 and 6 cover the features of extracting the soluble substances from unmalted starch-bearing materials at a temperature higher than 50° centigrade and treating the extract with an alkali, claim 6 having the additional feature of sterilizing the extract before treating it with alkali.

As hereinbefore stated concerning claims 3 and 4, the alkali treatment in the last step before fermentation is not found in the patent. Neither is the treatment of the material at a temperature higher than 50° centigrade found in the patent, the reference distinctly stating that the most suitable temperature at which to perform the extraction would be from 10° to 150 centigrade, and in no case must it be above 50° centigrade. It is thought that this language contains no implication that a temperature higher than 50° centigrade might be used, but rather, on the other hand, that a temperature of 50° centigrade should not be reached. The advantage arising from the treatment at the relatively high temperature is distinctly set forth, is not found in the patent, and is not negatived by any considerations apparent in the record, and as these two claims include the special alkali treatment they may be allowed.

The claims appear to be wanting in technical precision in the order of the steps, "fermenting the clear liquid, thereby forming yeast." Sowing the yeast in the liquid that it may multiply after its nature by the process of germination, thereby forming yeast, is thought to be the cause of the fermentation. The claims as they read appear to imply that the fermentation is the cause and the formation of the yeast the effect. The claims should be reviewed by the Examiner before passing the case to issue.

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

KIRBY v. MCLAUGHLIN & Co. v. JOHNSTON.

Decided August 21, 1895.

72 O. G., 1785.

1. TRADE-MARK-"ELECTRIC"_"ELECTRIC LIGHT"-REGISTRABILITY.

The differences in appearance, as written or printed, in sound, and in meaning are sufficient to differentiate the words “Electric Light" from the word "Electric," and therefore the prior registration of the latter word does not bar the registration of the former words.

2. SAME-INTERFERENCE-MOTION TO Dissolve.

A trade-mark consisting of the words "Electric Light" alone and another trademark consisting of these words accompanied by the representation of the upper part of an electric-light bulb with zigzag rays emanating from it conflict, the words being the "prominent, essential, and vital feature" of the marks, and a motion to dissolve the interference denied.

APPEAL on motion.

TRADE-MARK FOR FLOUR.

Application for registration filed by John B. Kirby November 30, 1894. Application for registration filed by McLaughlin & Co., November 7, 1894. Trade-mark registered to Willis Johnston June 12, 1894, No. 24,861.

Mr. J. J. Sheehy for Kirby and McLaughlin & Co.

Mr. E. J. Underwood for Johnston.

FISHER, Acting Commissioner:

This is an appeal by Johnston from the decision of the Examiner of Trade Marks dissolving the interference upon the ground of no interference in fact. The appeal also states error in the decision of the Examiner that the words "Electric Light" are not entitled to registration in view of the prior registration of the word "Electric."

In disposing of this appeal I find it expedient to first consider the suggestion of the Examiner that the phrase "Electric Light" is not entitled to registration in view of the prior registration of the word "Electric." The word "Electric" has been applied to various classes of merchandise as a trade-mark. It is a generic name denoting quality, though generally not of the goods.themselves. As applied, for

example, to flour, it is purely arbitrary, and yet it might be considered remotely suggestive of improvement, modern processes, or that the goods are endowed with qualities which impart energy and activity. It is not intended by these suggestions to state the purpose of the application of this word to flour, but simply to enumerate some of the effects that might be created in the mind of the purchaser by the presence of the mark. The term "Electric Light" designates a concrete thing-an article in general use representing the latest development of illumination. I think that the differences in appearance, as written or printed, the differences in sound, and the differences in meaning are sufficient to differentiate the words "Electric Light" from the word "Electric," and, therefore, that the prior registration of the word "Electric" does not bar the registration of the term in question.

The words "Electric Light" alone form the subject-matter of McLaughlin & Co.'s application. The registrant, Johnston, states in his registration, No. 24,861, that his

trade-mark consists of the words "Electric Light;"

but afterward states that the essential features are

the words "Electric Light" and the representation of the upper part of an electriclight bulb with zigzag rays emanating from it.

The difference between the two statements was created by an amendment consequent upon a rejection of this trade-mark in view of the prior registration of the word "Electric" for flour by Kufeke, No. 14,398, May 17, 1887. The application of Kirby presents identically the same mark in its essential features as the registration of Johnston and is very near identical in its details.

It is argued that the words "Electric Light" alone do not conflict with the words "Electric Light" accompanied by the representation of the upper part of an electric-light bulb with zigzag rays emanating from it. The device of this trade-mark is said to represent the upper part of an electric-light bulb with zigzag rays emanating from it; but, as shown, the device is the usual symbol representing a light-giving body and is, in fact, more applicable to a representation of the sun, for it does not accurately illustrate the upper part of an electric-light bulb. The rays have an arbitrary character which is universally used to designate rays of electric light or force. These rays are a familiar feature of advertisements of electric brushes, belts, and other articles, and have been so generally used that they are associated in the minds of the public with any term bearing the qualification of the word "electric." The symbol then bears the relation to the words of the ordinary well-known and arbitrary suggestion conveyed by its customary use.

Moreover, the marks of Kirby and Johnston are of the most common kind-that is, words associated with symbols. A mark of this character is impressed upon the memory not only through the sense of sight, but also, and in a larger measure, through the sense of hearing. The

word becomes, in the language of the Court of Appeals of New York, "a short phrase between the buyer and seller." In ordering either orally or by letter the purchaser would commonly use the words alone, and this of itself is strongly indicative of what is really the essential feature of the mark. The case of Filley v. Fassett (44 Mo., 168; 100 Am. Dec., 275; A. & E. Enc. of Law, vol. 26, 432, note, topic, "TradeMarks") is instructive in this connection. In that case the plaintiff owned a trade-mark for a stove, consisting of the words "Charter Oak," surrounded by a sprig of oak leaves. Defendant sold other stoves, using the same words as a mark, but without the sprig of leaves. The Court said:

The plaintiff's stoves are not conspicuously known by the particular device which surrounded the name upon them, but by the name itself. By that name the stove was bought and sold, and known in the western and southern markets. It was the prominent, essential, and vital feature of the plaintiff's trade-mark.

It is held, therefore, that in the marks of Kirby and Johnston the words "Electric Light" dominate the symbol accompanying them and are to the eye the essential feature, and that there can be no doubt but that the flour would be bought and sold under the name given by the words. The words then must be held to be the "prominent, essential, and vital feature" of the marks, and there is an interference in fact. The decision of the Examiner of Trade-Marks is therefore reversed, and the interference will proceed upon the issue as drawn.

MILLER AND MILLER v. LAMBERT.

Decided November 14, 1894.

72 O. G., 1903.

1. INTERFERENCE-PRIORITY-LICENSE AGREEMENT.

Lambert brought to the Millers a can having the essential features of the first and second issues. Though the license agreement is not in evidence, the record shows that the Millers manufactured cans based upon Lambert's invention, and paid royalty to Lambert. Held that Lambert was the inventor of the first and second issues.

It being clear that as to the third issne George Miller, and not Henry F. Miller and George Miller jointly, contributed all that is not the invention of Lambert, and the question of priority between George Miller and Lambert not having been presented upon the record, the decision upon the third is confined to this, that Henry F. Miller and George Miller are not joint inventors of the third issue. APPEAL from the Board of Examiners-in-Chief.

CAN-CLOSURE.

Application of Henry F. Miller and George Miller filed November 2, 1894, No. 450,748. Application of Albert S. Lambert filed August 25, 1892, No. 444,098.

Mr. George P. Whittlesey for Miller and Miller.

Mr. George E. Lemon and Messrs. Pennie & Goldsborough for Lambert.

SEYMOUR, Commissioner:

Miller and Miller appeal from the decision of the Examiners-in-Chief awarding priority to Lambert on the following issues:

1. The combination with a can top having its month provided with depending cams, of a cover fitting into said mouth and provided with projecting lips each composed of a fold of metal integral with said cover, substantially as described.

2. The combination with a can top having its mouth provided with depending cams, of a cover having a countersunk central portion provided with projecting lips each composed of a fold in the metal of the cover, substantially as described.

Miller and Miller are box and can manufacturers in Baltimore. Lambert lives in Bridgeton, N. J. In April, 1891, Charles C. Garrett, a representative of Lambert, brought to the attention of the Millers a can-closure differing in certain details from the issues, but of which the mouth was provided with depending cams, the cover fitting into the mouth and provided with projecting nibs forced out from the countersunk side of the cover as if with a pointed instrument. Negotiations followed between Lambert and the Millers, by which this invention of Lambert's was to be manufactured by the Millers under a license agreement with Lambert. Details variant from the original specimen brought by Garrett were carried out, by which in place of the pointed nib in the cover a projecting lip was formed from a fold of metal integral with the

cover.

Lambert took no testimony, relying upon his record date. The license agreement was not submitted by the Millers; but enough is disclosed to show that it was a construction of the parties put upon the acts of both at a time prior to any disagreements, and this, together with the circumstances under which the agreement was made and for some time carried out, the Millers paying a royalty to Lambert upon each can manufactured by them, leads to the conclusion that Lambert was the inventor of the subject-matter of the first and second issues.

As to the third issue, it is clear that George Miller, and not Henry F. Miller and George Miller jointly, contributed all that was not the invention of Lambert, if anything. Whether as between George Miller alone and Lambert, Lambert is also the original inventor, I do not decide, for the parties have not presented that question upon the record. All that need be decided here is that Henry F. Miller and George Miller are not the joint inventors of any part of the third issue.

Judgment of priority is therefore awarded to Lambert, and the decision of the majority of the Board of Examiners-in-Chief is affirmed.