RIGHT TO MAKE CLAIMS-Continued. 2. SAME. "We are unable to find error in the decision appealed from, holding that appellant's application does not sufficiently support the claims. It is not enough that he disclosed the formula for the product claimed, but under the provisions of section 4888 of the Revised Statutes (U. S. C., title 35, section 33) he must file a 'written description * * * of the manner and process of * * * compounding * * * it * * * in such full, clear, concise, and exact terms as to enable any person skilled in the art * * * to * * compound the same.' *Id. * * * 3. APPLICATION-DISCLOSURE-RIGHT OF APPLICANT TO MAKE CLAIMS COPIED FROM PATENT.-Certain claims to a device for damping the vibrations of a structure, including claims copied by appellant from a patent granted to another, Held supported by appellant's application. In re Salomon, 600. 4. RIGHT OF APPLICANT TO MAKE CLAIM COPIED FROM PATENT.-Held that appellant should not have the right to make a claim of a patent for the purpose of interference merely because the difference between his structure as disclosed in his application and that of the patentee does not amount to an inventive one. *In re Heltzel, 665. 5. SAME. An applicant is not entitled to make a claim copied by him from a patent granted to another because his application does not "exclude" a feature expressed in the patent claim. *Id. 6. SAME. "To merely use language or drawings which do not exclude some feature would not comply with the patent laws. See Brand v. Thomas, 25 C. C. P. A. 1053, 96 F. (2d) 301, 37 U. S. P. Q. 505, 496 O. G. 561. For interference purposes, all limitations must be regarded as material. Field v. Stow, 18 C. C. P. A. (Patents) 1502, 49 F. (2d) 1072, 9 U. S. P. Q. 483, 413 O. G. 283. And if a count does not read upon a disclosure, no interference exists. rule applies in an ex parte consideration like that at bar." The same *Id. 7. SAME.-A claim to a load transfer device substantially copied by appellant from a patent granted to another, Held not supported by appellant's application. *Id. RIGHT TO PATENT. See Patentability, 31. RIGHT TO REGISTER TRADE-MARKS. See Trade-Marks 8, 64, 65, 66, 67, 69. RULES OF PRACTICE IN THE U. S. PATENT OFFICE. See Appeal to the U. S. Court of Customs and Patent Appeals, 4; Applications, 1. 2; Claims 10; Divisional Applications, 5, 6; Election by Common Assignee, 2; Estoppel, 1; Interference, 9, 11, 16, 21, 30; Reissue Applications, 1, 3; Renewal Applications; Res Adjudicata, 1, 2. SIMILARITY OF TRADE-MARKS. 23, 42, 68, 69, 70, 71, 72. See Trade-Marks, 15, 16, 17, 18, 21, 22, SPECIFICATIONS. See Applications, 10; Claims, 18, 19, 20; Court of Claims 3; Construction of Specifications; Invention, 7. STATE OF THE ART. See Appeal to the U. S. Court of Customs and Patent Appeals, 2; Claims, 3, 4, 12, 16; Designs, 2, 3; Divisional Applications, 1, 2; Invention, 2, 4, 9, 10, 13, 14, 15, 17; Patentability; Validity of Patents, 2. SUBSTITUTION. See Patentability, 101. SUITS FOR INFRINGEMENT. See Anticipation; Infringement 2; Validity of Patents, 1, 2. SUITS UNDER SECTION 4915, R. S. 1. FINDING ON INVENTION.-Held that the weight to be given to the evidence as to the presence of invention is a question for the Patent Office and the district court, and Held that their finding on the ultimate question of invention will not be disturbed unless it is clearly wrong. Reed and Fohs Oil Company v. Coe, Commissioner of Patents, 10. a SUITS UNDER SECTION 4915, R. S.-Continued. 2. JOINDER OF DEFENDANTS IN CONFORMITY WITH 35 U. S. C. A. § 72a.— Where three applications, that of Wayne (under which Visco Products Company is an exclusive licensee), that of Vietti and Garrison (assigned to The Texas Company), and that of Cannon (assigned to Standard Oil Development Company), were included in an interference proceeding; and the U. S. Patent Office awarded priority to Wayne on six counts, to Vietti and Garrison on one, and to Cannon on one Held that Cannon and the Standard Oil Development Company properly were joined with Wayne, as parties defendant, in a suit under section 4915 R. S., brought by Vietti et al. in the District Court of the United States for the District of Columbia, in conformity with 35 U. S. C. A. § 72a. Vietti et al. v. Wayne et al., 99. 3. SAME. "The fact that certain defendents may be sued separately does not necessarily require that they be sued separately. The very purpose of the applicable statute in the present case is to permit the bringing together, in one proceeding, of all parties whose interests are adverse; whether their adversity arises out of interfering patents or because they were adverse parties in an interference proceeding; in order that the interests of all may be determined. For this purpose the controversy is inseparable." Id. a 6 4. SAME. "The important consideration is not, as appellees contend, what the Patent Office awarded at the conclusion of the interference proceeding. It is, instead, what the parties to the interference claimed. Appellants claimed, and alleged in their complaint in the district court, that Vietti and Garrison are the original, first, and joint inventors of the subject matter of said interference as defined in the above counts.' * * * In the prayer of their complaint they asked the district court to decree that they are the first inventors of the subject matter of all counts. The case is one which comes clearly within the statute, and the district court had jurisdiction of it." Id. 5. "ADVERSE PARTY" WITHIN MEANING OF 35 U. S. C. A. § 72a.-Where Robinson, Wayne, and one Cannon were involved in an interference proceeding in the U. S. Patent Office, in which priority was awarded to Robinson on two counts, to Wayne on fifteen, and to Cannon on none; and Robinson commenced suit in the District Court of the United States for the District of Columbia, under section 4915 R. S., and joined with him, as plaintiff, the Texas Company, his assignee, and joined, ' as defendants, Wayne, Cannon, and the Standard Oil Development Company; and Robinson alleged in his complaint that the latter company presently owned the Cannon application; and it appeared that Cannon and Wayne resided in Houston, Texas, but that the Standard Oil Development Company was incorporated in Delaware, and had a place of business in the Southern District of New York Held that the Standard Oil Development Company was an adverse party; that it did appear from Robinson's complaint that there were adverse parties, to the suit, residing in a plurality of districts not embraced within the same State, as required by 35 U. S. C. A. § 72a; and that the District Court of the United States for the District of Columbia had jurisdiction of the suit. Robinson, Jr.; The Texas Company v. Wayne et al, 95. 6. SAME. "We have no doubt that on who is 'the present owner of the title' to one of the applications which were joined in an interference proceeding is an adverse party, within the meaning of the statute, when joined as a party in a section 4915 proceeding to challenge the decision of the Patent Office." a Id. 7. SAME-APPEARANCE OF ADVERSE PARTY NOT REQUIRED. "The statute does not require that the adverse parties appear; neither does it make jurisdiction depend upon appearance. It provides, simply, that if, upon filing of a bill, it shall appear that there are adverse parties residing in a plurality of districts not embraced within the same State, the court shall have jurisdiction thereof. Obviously, the purpose of the statute is to make jurisdiction depend upon the situation which is revealed by the complaint. If the party upon whom the court's jurisdiction depends was, at that time, actually an adverse party, within the meaning of the statute, that is sufficient. If he chooses, thereafter, to default, that does not deprive the court of jurisdiction.' a Id. SUITS UNDER SECTION 4915, R. S.-Continued. 8. SAME AMENDMENT OF COMPLAINT TO INCLUDE EXCLUSIVE LICENSEE.— "When Wayne's appearance in the district court revealed that Visco Products Company is the exclusive licensee under Wayne's application, and that Visco is a resident of Delaware, appellants were entitled to join that company as a defendant. Their motion to amend should, therefore, have been granted." Id. 9. SAME PURPOSE OF 35 U. S. C. A. § 72a.-"The purpose of the statute is to make possible the adjudication of all issues involved, between all adverse parties, in one proceeding and in one forum. The District of Columbia was selected by Congress as being the forum in which this fundamental objective of equity can best be achieved, when adverse parties reside in a plurality of districts not within the same State. That prerequisite having been satisfied in the present case, the district court for the District of Columbia has jurisdiction.' • Id. SUPREME COURT OF THE UNITED STATES. See Decisions of the Supreme Court of the United States. SURRENDER OF PATENT. See Reissue Applications, 1. TERMINOLOGY. See Court of Claims, 1, 2, 4; Patentability, 4, 31; Right to Make Claims, 1, 2, 6; Trade-Marks, 36. TESTIMONY. See Interference, 38, 50, 59, 65, 66, 70; Trade-Marks, 14, 38. TESTS. See Interference, 57, 58, 59, 60, 63; Trade-Marks, 22, 36. TIME FOR TAKING APPEAL. See Appeal to the U. S. Circuit Court of Appeals; Applications, 9; Trade-Marks, 3, 4, 5, 6, 7, 50. TRADE-MARK USE. See Trade-Marks 12, 14, 40, 45, 46, 65, 66, 73, 74. Appeal to the U. S. Court of Appeals for the District of Columbia а 1. APPEAL-NONE FROM ORDER DENYING A MOTION FOR REHEARING.-Held settled that no appeal lies from an order denying a motion for rehearing. Safeway Stores, Incorporated, v. Coe, Commissioner of Patents, and Southern Independent Oil and Refining Company, Inc., 75. 2. SAME FINAL ORDER.-Where Safeway, after unsuccessfully opposing in the U. S. Patent Office the application of Southern for trade-mark registration, filed a complaint in the district court against the Commissioner of Patents and Southern, praying that the Commissioner be enjoined from issuing the registration; and the Commissioner moved to dismiss the complaint on the grounds that he was not a proper party to the action and that the action could not proceed against him in the absence of a necessary party, Southern; and the motion was sustained and the complaint dismissed, Held that the order of the district court dismissing the complaint was not preliminary and interlocutory, but final and appealable. Id. a a 3. SAME TIME FOR TAKING SUSPENSION BY PETITION FOR REHEARING.- 5. SAME SAME-SAME.-"We think that these bankruptcy cases were not 6. SAME-SAME-SAME. "Since motions for new trials and petitions for rehearing suspend the time for appeal because they deprive the judgment of finality, Zimmern v. U. Š., 298 U. S. 167, it follows that when a court loses its jurisdiction to entertain a motion for new trial or petition for rehearing, action by it cannot deprive the judgment of finality, and so cannot suspend the time for taking an appeal." a Id. TRADE-MARKS-Continued. 7. SAME-SAME-SAME.-"No application having been made within ten days, the judgment became final and the subsequent filing of a motion did not clothe the court with new jurisdiction nor suspend the time for taking an appeal." a Id. Appeal to the U. S. Court of Customs and Patent Appeals. 8. SAME-TRADE-MARK OPPOSITION-OPPOSER AS PARTY WHERE APPLICANT APPEALS FROM EX PARTE REJECTION.-Where the Commissioner of Patents dismissed the opposition of Drink-Mor Beverage Company to the application of Island Road Bottling Company for trade-mark registration, but adjudged, ex parte, that the applicant was not entitled to the registration for which it had made application; and the applicant took an appeal to the Court of Customs and Patent Appeals from said ex parte decision, but the opposer took no appeal from said dismissal of its notice of opposition Held that the opposer was not entitled to make a motion to correct diminution of the record, or to appear in any other respect as a party to applicant's appeal. *Island Road Bottling Company v. Drink-Mor Beverage Company, 119. 9. SAME SAME SAME.-"Upon the record before us the Drink-Mor Beverage Company is not a party to this appeal other than in form. The controversy presented to us is solely between appellant and the Commissioner of Patents representing the public, and it should be treated in all respects as an ex parte case with the Solicitor for the United States Patent Office appearing to represent the Commissioner of Patents." *Id. Assignment of Trade-Marks 10. SECTION 10 OF THE ACT OF 1905.-Where one Breyer, the president of Ostrex Company, Inc., testified that he sold to that company the registered mark upon which the company relied in petitioning for cancellation of a trade-mark registration assigned to Euromerica Medical Products, Inc., and the deed of assignment from Breyer to Ostrex Company, Inc., was offered in evidence and showed on its face that it was duly recorded in the U. S. Patent Office in accordance with section 10 of the Trade-Mark Act of February 20, 1905 (15 U. S. C. § 90) and that it had been acknowledged before a notary public, Held that ownership by Ostrex Company, Inc., of the assigned mark from the date of the assignment had been prima facie established. *Sylvain Rosengart (Euromerica Medical Products, Inc., Assignee, Substituted) v. Ostrex Company, Inc., 457. 11. SAME. "To hold that the execution of an assignment of a trade-mark, where the assignment was acknowledged and duly recorded in the Patent Office in accordance with law, had to be proved, it seems to us, might result in very great hardships. The execution of many such assignments could not possibly be proved by any living witness. The assignment may not be conclusive upon such fact when questioned, but such a document as we have described here, we think, should be sufficient to make a prima facie case of ownership of the mark so assigned." *Id. Cancellation of Trade-Mark Registrations 12. CANCELLATION.-Where the Commissioner of Patents and the district court found that appellant's use of the descriptive word "Superior" in connection with oils and greases, during the period of ten years next preceding February 20, 1905, was not exclusive, and that finding was not unreasonable Held that the district court properly refused to enjoin the Commissioner of Patents from cancelling the appellant's trade-mark registrations covering use of the word "Superior" in connection with oils and greases. Galena Manufacturing Company of Illinois (formerly known as Galena Axle Grease Co.) v. Coe, Commissioner of Patents, and Superior Oil Works, Intervenor, 9. 885 TRADE-MARKS-Continued. 13. INJURY.-"Inasmuch as appellee used the words 'vise stand' as describing goods similar to those to which appellant applied the mark °Vistand' it was not necessary for appellee to prove actual damage to it by appellant's registration. In such circumstances damage will be *The Armstrong Manufacturing Co. v. The Ridge Tool presumed. 14. PROOF OF OWNERSHIP.-The ruling in Old Monk Olive Oil Co. v. Southwestern Coca-Cola Bottling Co., etc., 28 C. C. P. A. (Patents) 1091, 118 F. (2d) 1015, 530 O. G. 270, that testimony taken five years before a petition for cancellation was filed did not prove use of the petitioner's unregistered trade-mark at the time of filing Held not applicable to the case at bar, where the petitioner's mark was registered, and where the record showed that this registered mark was transferred by the registrant to his company a little over three years prior to the filing of the petition for cancellation, but during approximately two years of the intervening time opposition proceedings based upon ownership and use by the company of the registered mark were in progress. *Sylvain Rosengart (Euromerica Medical Products, Inc., assignee substituted) v. Ostrex Company, Inc., 457. Confusion of the Public 15. CONFUSING SIMILARITY.-Where opposer asserted publication of a periodical under the title "The Architectural Record Combined with The American Architect and Architecture," and alleged ownership of the registered trade-marks "Architecture," "The Architectural Record," "The American Architect" and "American Architect and Architecture," for periodicals, and applicant did not claim that opposer had abandoned any of its registered marks Held that "applicant's mark must be subjected to comparison with each of the registered marks in considering the likelihood of confusion." Catalog Co., Inc. v. F. W. Dodge Corporation, 626. 16. TITLES OF PERIODICALS-CONFUSING SIMILARITY.-"The publishers of *Architectural periodicals and magazines frequently change the style of the title pages while retaining the same words in the titles, and the style which may be used upon one issue may differ from that used upon another. It is of no great aid, therefore, in considering the question of confusion to look to the style or arrangement of the title upon any particular issue. So, the words rather than the forms and arrangement of the type used must be the matter of primary consideration." *Id. 17. CONFUSING SIMILARITY.-The notation "Architecture and Design," used as the title of a periodical issued by applicant, Held confusingly similar to the trade-mark "Architecture," registered by opposer for periodicals. *Id. 18. SAME. "Likelihood of confusion is usually determined by consideration of the goods to which the marks are applied and a comparison of the marks involved." 639. *Pratt & Lambert, Inc. v. Chapman & Rodgers, Inc., Construction of Federal Rules of Civil Procedure 19. FEDERAL RULES OF CIVIL PROCEDURE-RULE 60.-A change in the law a 20. SAME SAME.-With respect to the qualification in rule 60 (b) of the |