wide temperature range of 225°F-600°F with the assistance of three or more polymerization initiators having the different but overlapping decomposition temperature ranges recited in the claims. Implicit in appellants' argument here is their relegation of Deex to the category of "constant environment" or constant temperature polymerization processes. As evidence of that, appellants rely on the heretofore quoted Example 5 of Deex where the reaction is carried out in a manner to avoid "any sharp, high peaks" in the reaction temperature-reactor time curve. We cannot agree with appellants' characterization of Deex, or with their assertion that they are the first to polymerize ethylene over a wide, "dynamic" temperature range. It is evident from Deex as a whole-Example 5 in particular-that he did not wish to conduct his polymerization at temperatures approaching isothermal, constant environment conditions or to avoid a reaction temperature peak, but that he, like appellants, desired to polymerize ethylene over a broader temperature range than had theretofore been possible with the use of a single catalyst. To accomplish that result, rather than using a single catalyst, most of which decomposes at a relatively high temperature to result in little polymerization in the upstream portion of the reactor but extensive polymerization in the downstream portion with danger of substantial carbonization, Deex employs two peroxygen catalysts having signficantly different decomposition temperatures to obtain substantial polymerization in the upstream portion of the reactor initiated by the low temperature catalyst which continues over a smooth temperature curve to a peak temperature, thus obtaining higher conversion and more desirable polymer properties. With the two initiators employed in Examples 3 and 5, the peak temperature was approximately 215-220°C, although Deex suggests that it is possible to retain a smooth temperature curve and obtain even higher conversions by conducting the polymerization at still higher reaction temperatures while avoiding undesirably high peak temperatures. As one way of accomplishing that result, we see no reason why one of ordinary skill in this art would not, as a matter of course, employ the requisite amount of yet another initiator compound having a still higher decomposition temperature. Contrary to appellants' arguments, it seems to us that both the Taken in context, what is clear from Deex is that he, like appellants, wished to avoid undesirably high reaction temperature peaks which led to decomposition or carbonization of the polymer. The language of Example 5 itself establishes that substantial polymerization occurs in the 120-170°C (248-338°F) temperature range as well as in the 170-215°C (338°-419°F) range with the added suggestion that it would be clear to one in the art how conditions of Example 5 could be modified to obtain polymerization at even higher temperatures, perhaps up to 320°C (608°F), a total range comparable to that of appellants. general and more specific disclosure of Deex reasonably suggests the use of at least three initiators for effecting polymerization over a broad temperature range as the examiner has found. The question remains whether Deex would suggest the use of three peroxide initiators having the overlapping decomposition properties which provide the substantially continuous supply of free radicals during the polymerization temperature rise as recited in the claims. That issue was recognized by the examiner, though he did not discuss it to any great extent other than to observe that Deex, like appellants, desires to obtain a smooth reaction temperature-reactor time curve over a wide temperature range. It appears to have been the examiner's position that one of ordinary skill would realize that he would necessarily have to employ at least two, perhaps three or more, peroxides having overlapping decomposition temperature ranges in order to obtain such a smooth curve free of erratic changes. On that issue, appellants contend: *** The true concept of Deex et al is clearly disclosed in the specification of their patent * * *. This concept did not involve initiators with overlapping decomposition temperature ranges as is obvious from the list presented Appellants then give an illustration of their contention. The general selection of initiators which appellants seem to urge would be made from the list contained in the Deex disclosure ignores, however, the more specific selection criteria imposed by Examples 3 and 5 to permit obtention of a smooth temperature curve in accordance with the patentee's suggestion. We note that appellants do not argue that one of ordinary skill would be unaware that the initiators suggested by Examples 3 and 5 of Deex do in fact have overlapping decomposition properties. Appellants' arguments have not convinced us of error in the position taken by the examiner and affirmed by the board. The decision is affirmed. 419 F.2d 462; 164 USPQ 132 B. T. BABBITT, INC. V. PHILLIPS-VAN HEUSEN CORPORATION (No. 8221) TRADEMARKS 1. CLASS OF GOODS-PARTICULAR CASES-NOT SIMILAR-IDENTITY AND SIMILARITY— WORDS-NOT SIMILAR "Vanapress" and "Vanopress" for shirts, cuffs, collars, pajamas, underwear, knit shirts, and slacks do not resemble "Vano" for laundry starch, clothing and household bleach, fabric fluffer, fabric finishes, and ironing aids that confusion is likely. 2. INFRINGEMENT-IN GENERAL Arbitrary mark is entitled to broad protection. 3. IDENTITY AND SIMILARITY-HOW DETERMINED-DOUBT AGAINST NEWCOMER Law requires all doubts as to likelihood of confusion to be resolved against newcomer. 4. APPEALS To Court-JURISDICTION Court has no jurisdiction to consider Board's ruling that trademark application requires reexamination since evidence shows that mark has been used only on some of recited goods. United States Court of Customs and Patent Appeals, December 31, 1969 APPEAL from Patent Office, Opposition Nos. 45,513 and 45,514 [Affirmed] Seidel & Gonda, Edward C. Gonda, attorneys of record, appellant. [Oral argument December 4, 1969 by Mr. Gonda and Mr. Munson] Before RICH, ALMOND, BALDWIN, LANE, Associate Judges, and Rao, Judge, sitting by designation. RICH, Judge, delivered the opinion of the court: This appeal is from the decision of the Patent Office Trademark Trial and Appeal Board, 153 USPQ 863, dismissing two oppositions consolidated for trial, Nos. 45,513 and 45,514. The first was against the Phillips-Van Heusen Corporation's application serial No. 215,259, filed March 29, 1965, to register VANAPRESS for men's shirts, cuffs, collars, pajamas, sports shirts, underwear, knit shirts, and slacks, first use claimed on July 3, 1962. The second was against appellee's application serial No. 215,260, filed March 29, 1965, to register VANOPRESS for the identical goods, claiming first use on March 2, 1965. Appellee concedes to appellant priority in the use and registration 1 of VANO as a trademark for household cleaner, liquid and powder form laundry starch, clothing and household bleach, fabric fluffer, laundry starch in spray form, fabric finishes, and ironing aids. [1] In a concise opinion, the board reached the conclusion that confusion, mistake, or deception (15 USC 1052 (d)) was "not at all likely" in view of the cumulative differences in the marks as a whole and the goods to which they are respectively applied. We affirm. [2] Appellant-opposer contends its mark is arbitrary and hence entitled to broad [3] protection and that the law requires all doubts to be resolved against the newcomer. We agree with these propositions but consider them inapplicable to the facts of this case. The board apparently had no doubts, nor do we. VANOPRESS is not altogether 1 No. 392,176, Dec. 16, 1941, "Vano". No. 634,513, Sept. 18, 1956, "VANO." No. 643,786, Apr. 9, 1957, "Vano" and ribbon design. No. 705,788, Oct. 18, 1960, "VANO." No. 726,631, Jan. 23, 1962, “VANO.” No. 759,875, Nov. 12, 1963, "Vano" and little girl design. arbitrary when it is considered that it is a Van Heusen mark and applied to clothing which requires no pressing. It is highly suggestive and obviously related to its owner's name. The fact that VANO may be entirely arbitrary does not alter these facts.2 Appellant makes a number of arguments directed to showing that the goods, though clothing on the one hand and chemical products on the other, are really quite closely related. One is that both parties used a Chinese laundryman theme in TV commercials to emphasize no ironing on the one hand and ironing aids on the other. We are not persuaded by this that the public would assume common origin for shirts and starch, etc. The evidence appears to demonstrate that applicant-appellee's shirts have a permanent press by reason of the composition of the textile fabric and a special pressing technique on special equipment and not by reason of any chemical finishing agent applied to the fabric. Though it is possible for appellant to argue in the abstract that appellee's mark VANOPRESS is nothing but its mark VANO with "press" added thereto, there is nothing to show that the mark was actually created in that fashion or that any ulterior motive is involved. The VANAPRESS mark is clearly even less likely to cause confusion." Finding, as we do, that the oppositions were properly dismissed, the decision of the board is affirmed. 419 F.2d 925; 164 USPQ 218 IN RE HENRI-GEORGES DOLL (No. 8223) PATENTS 1. REISSUE-SAME INVENTION AS ORIGINAL REISSUE-TIME FOR APPLICATION Claims presented in reissue application filed within two years of original patent grant are not barred by 35 USC 251 although claims are not submitted until more than two years after the grant and are broader in scope than both the original patent claims and broadening reissue claims originally submitted. 2 Appellee makes the counter suggestion that VANO was probably selected "because of its meaning in Italian, which is: I vanish." This, according to our Italian dictionaries, appears to be untrue. The verb for vanish is "svanire." 3 [4] The board opinion, in footnote 2, has called attention to the need to reexamine the VANAPRESS application since the evidence shows this mark to have been used only on slacks, even that use having been discontinued in 1965. Also, it appears that VANOPRESS was not used on slacks and perhaps not for cuffs and collars, wherefore it likewise requires reexamination. These matters are beyond our jurisdiction and are mentioned only to assure that they are not overlooked. United States Court of Customs and Patent Appeals, January 8, 1970 [Reversed] APPEAL from Patent Office, Serial No. 694,700 Brumbaugh, Graves, Donohue & Raymond, attorneys of record, for appellant. Arthur S. Tenser, of counsel. Joseph Schimmel for the Commissioner of Patents. Jere W. Sears, of counsel. [Oral argument December 2, 1969 by Mr. Tenser and Mr. Sears] Before RICH, ALMOND, BALDWIN, LANE, Associate Judges, and RAO, Judge, sitting by designation. ALMOND, Judge, delivered the opinion of the court: This appeal is from the decision of the Patent Office Board of Appeals affirming the examiner's rejection of claims 32-35, 42 and 43 in appellant's application for a reissue patent1 on the grounds that the claims are barred by the fourth paragraph of 35 USC 251 and not supported by an oath complying with Patent Office Rule 175. The invention relates to method and apparatus for oil well logging, with which information about the nature of earth formations surrounding a borehole is obtained. More important than an understanding of the invention here is the history of the application before the Patent Office presenting the development of the issues before us. The following facts are not in dispute. On October 31, 1957, a year and ten months after issuance of his original patent, appellant filed the instant reissue application with the 19 claims of the original patent and 12 additional claims (claims 2031), broader than the 19 original claims, copied for interference purposes from a patent to one Waters. After termination of an interference arising from the above action, appellant presented, during ex parte prosecution, four claims (32-35) copied from a patent to one Piety. The date of submission of those claims was July 28, 1960. Subsequently, during the duly declared Piety interference, appellant presented claims 36-41 copied from a third patent to Alder. On October 16, 1962, claims 32-35 were amended and claims 42 and 43 were presented. No oath other than the original reissue application oath was of record prior to the board's decision. Claims 32-43 are conceded to be broader than any of the original patent claims. All claims were found by the board to be for the invention disclosed in the original patent, and claims 36-41 were further found to be more limited in scope than claim 20 submitted at the time of filing of the reissue application. Claims 32-35, 42 and 43, the only claims before us, are 1 Serial No. 694,700 filed October 31, 1957 for reissue of patent No. 2,728,047 granted December 20, 1955 for "Method and Apparatus for Logging Spontaneous Potentials in Wells." 374-293-71—10 |