to matter properly a label, he should first register the fanciful matter as a trade-mark.

The decision proceeded on the ground that the law having established a distinction between trade-marks and labels, and a difference in the fees to be paid for their respective registration, the Office is bound to clearly define that distinction for its own guidance as well as for the information of the public. It would not only lead to great confusion in the practice of the Office, should no distinction be made, but would work a great injustice in such cases as the present one, were applicants, who found themselves anticipated in the use of certain trade marks, allowed to register them as labels, thus holding forth to the public, under a certificate of this Office, tthat they were the owners of a certain species of property which the records of this Office already showed to be the property of others.

The same distinction made in the Simpson case had before been estab lished in the case of Godillot. (6 OFFICIAL GAZETTE, 641.)

I think to entitle the applicant to register the figure of a swan or the words "Our London Swan Gin" as part of their labels, thereby substantially alleging their proprietorship of such figure and words as a trade-mark, they should first establish their right to the trade-mark. This they can do by proof adduced in an interference proceeding, or by showing that they were the assignees or licensees of the previous registrants, or by an adjudication of a court of competent jurisdiction estab lishing their title to the same.

The decision of the Examiner of Trade-Marks is affirmed.

W. W. BIERCE.

Appeal.

O. G., vol. xi, p. 1108.

APPEAL FROM THE DECISION OF THE BOARD OF EXAMINERS-IN-CHIEF IN THE MATTER OF THE APPLICA

TION OF W. W. BIERCE FOR "IMPROVEMENT IN STRIP OR RIBBON TICKET."-Decided April 6, 1877.

Combining with an old form of ticket a scheme of making one or more of the tickets redeemable, it being old to make all of them redeemable, does not constitute a new article, or amount to a patentable invention.

Doubted, whether a plan or method of transacting business is patentable under the statute.

SAMUEL A. DUNCAN for applicant.

SPEAR, Commissioner :

The invention which is the subject of this application consists of a strip of paper printed to represent tickets designed for use in collecting fares from passengers upon street-railways, one or more tickets of the strip being marked so as to indicate that they are redeemable for value

All the tickets, it is stated, may be numbered consecutively, and may also have the number of the car and the name of the railway. This is made the basis of a number of claims differing in respect to the other elements of the alleged invention, but all containing the element of the number of redeemable tickets.

It appears from the record that strips printed to represent tickets numbered consecutively, and having the name of the railway and like matters also printed upon them, are not new. It also appears that the scheme of making tickets redeemable, so as to induce passengers to call for the ticket, upon payment of the fare, is not new. It seems, therefore, that the applicant has adopted, in connection with an old form of tickets, an old system or plan to induce passengers to call for the ticket upon payment of the fare. I call this expedient for refunding money to the possessor of a certain ticket not essentially an improved device, or article, so much as a plan or method (improved, it may be) of transacting business. I doubt the patentability of such method, it not relating to any art, machine, manufacture, or composition of matter, whether it be considered alone or in connection with mechanical devices. But the plan adopted by applicant appears to be essentially the same as that before known. The only variation which he has introduced from that described in the patent of Stridiron, of 1872, is the element of uncertainty caused by making one of a number instead of all of the tickets redeemable. That is to say, he finds it unprofitable to pay a premium for the return of every ticket, and decides to pay for only a portion. In my judgment, the adoption of this old, although somewhat modified, expedient, in connection with an old form of tickets, does not constitute a new article, or amount to a patentable invention.

The decision of the Board of Examiners-in-Chief is, therefore, affirmed.

PETER R. GOTTSTEIN.

Reissue.

O. G., vol. xi, p. 1061.

IN THE MATTER OF THE REISSUE APPLICATION OF PETER R. GOTTSTEIN, FILED DECEMBER 18, 1876, OF PATENT NO. 101,857, APRIL 12, 1870, FOR AN "IMPROVEMENT IN STEARINE CANDLES."-Decided April 11, 1877.

Great care is to be exercised in not allowing new matter to be incorporated into a reissue application in cases where there is neither model nor drawing; but where the ambiguity in the patent is explained in a manner not inconsistent with the original invention, and the patent is clearly inoperative by reason of such ambiguity, the discretion reposed by law in the Commissioner should be exercised in favor of the patentee upon the production of satisfactory evidence that the matter to be introduced was part of the original invention.

GEORGE H. LATHROP for applicant.

DOOLITTLE, Assistant Commissioner:

The applicant in his patent claimed, "as a new article of manufac ture," the within-described candle for miners' "use." The entire description of its formation was embraced in this single paragraph.

To furnish a light which, while superior in brilliancy and duration, shall cause neither smoke nor unpleasant odors, is the object of my invention, which consists in forming a candle of stearine by the process known as "dipping," by which means an article is produced that is firmer in texture, and will last from one to two hours longer than any candle of an equal size heretofore furnished for miners' use, while at the same time costing but little more than those.

From this description it would naturally be inferred that the ordinary process of "dipping" was practiced in producing the article, and that the novelty consisted alone in the fact that a stearine candle had for the first time been made by this common process.

But now, under the last clause of sec. 4916, Revised Statutes, which provides that

When there is neither model nor drawing, amendments may be made upon proof satisfactory to the Commissioner that such new matter or amendment was a part of the original invention, and was omitted from the specification by inadvertence, accident, or mistake, as aforesaid

applicant sets forth by his affidavit, supported by that of one other person, that the process of dipping alluded to in the patent is not the usual and well-known process, but quite another, and that, in fact, the candle claimed was not and could not be produced by the ordinary process of dipping; that, by reason of inadvertence, &c., the description of the process was omitted, and his patent rendered inoperative by such omission.

It would need no proof, however, to establish the fact that the patent was invalid if it were construed as covering alone the making of a stearine candle by the common process of dipping. It having been an old and well-known art to form candles from tallow by dipping, nothing patentable would arise by applying the same process to stearine, both the process and the properties of the latter-named article being well known.

by the patentee, consisted in Applicant states that, owing stearine, and its liability to manner as tallow for dipped

The real discovery, then, if any, made peculiarities of the process he adopted. to the rapid and unequal cooling of the crack in cooling when used in the same candles, it has hitherto been considered impracticable to make stearine candles otherwise than by molding.

His process is as follows:

In carrying out my invention the room in which the candles are made should be kept at a temperature of from 75° to 100° Fahrenheit, from the time the wicks are first dipped until the finished candles become thoroughly hardened.

As many wicks as desired are then dipped in a vat of hot stearine until they are covered with stearine until they are about one-quarter of an inch thick, and then allowed to become entirely cool. Then the workman is to take such a number of blocks of wicks, dipped and cooled as aforesaid, as he can dip in succession so rapidly that

they will not harden between dips, and dip them in succession rapidly until the candles attain the desired size. I have found, by experience, that four or six blocks of wicks are all that should be taken at once.

He claims both the process and the article produced thereby.

I am aware that great care should be exercised in allowing new matter to be incorporated in a reissue application in cases of this kind; but where, as here, the ambiguity is explained in a manner not inconsistent with the original invention, and where the patent is clearly inoperative by reason of such ambiguity, it is but just that the discretion reposed by the law in the Commissioner should be exercised in favor of the patentee upon sworn statements of the character herewith filed.

The proof of the new matter as being part of the original invention is satisfactory, and the examination of the case will proceed upon its merits.

ANSON vs. WOODBURY ET AL.

Interlocutory Appeal.

O. G., vol. xii, p. 1.

APPEAL FROM THE DECISION OF THE BOARD OF EXAMINERS-IN-CHIEF IN THE MATTER OF THE INTERFERENCE BETWEEN THE APPLICATION OF ALFRED ANSON, FILED SEPTEMBER 13, 1876, AND SEVENTEEN PATENTS FOR "IMPROVEMENTS IN PLANING-MACHINE."-Decided April 16, 1877.

Matters of public notoriety affecting the right of an applicant to a patent will be taken notice of by the Office in analogy to the practice of the courts in determining the validity of patents.

Affidavits of adverse parties cannot be received to impeach the patentability of an applicant's invention.

SPEAR, Commissioner:

An interference was declared between the application of Anson and a patent granted to J. P. Woodbury, April 29, 1873, at the request of the former, which interference was subsequently dissolved by order of the Commissioner for the purpose of introducing other patents showing the invention. Motion was made before the Primary Examiner for the dissolution of this interference on the ground of notorious public use for more than two years prior to the filing of the application of Anson, and it is from his decision that this appeal is taken under Rule 59. The subject-matter declared to be in interference is

The employment of a yielding presser bar or bars for holding down the lumber upon the solid bed of a planing-machine, and also in the use of said bar or bars in connection with a rotating planing-cylinder

as claimed by Anson.

This motion is made on the part of Woodbury, and in support thereof he has introduced a number of affidavits tending to show more than two years' public use prior to the filing of Anson's application. There is no provision of law for, nor do the rules of practice contemplate, the

consideration of ex parte affidavits made by adverse parties to affect the rights of applicants before this Office.

It was urged on the part of counsel adverse to Anson that the affidavits were not submitted to show any particular instances of use, but rather to show notoriety of use. In either case the effect would be the same, and in admitting and considering such affidavits as evidence the Office would be adjudicating upon the rights of parties lawfully prosecuting their applications on testimony not taken in accordance with any requirement of law, and of witnesses which the parties in interest had no opportunity to cross-examine. I see, therefore, no reason for departing in this case from the uniform practice of the Office.

But, without reference to affidavits respecting this matter, it seems to me that there are other and very strong reasons for refusing a patent to Anson. It has been determined by the Supreme Court of the United States that in patent matters courts may take judicial notice of matters of public notoriety, and this whether mentioned in the pleadings of the party or not. (Brown vs. Piper, 10 OFFICIAL GAZETTE, 417.) If the courts will thus notice such matters in determining the validity of a patent, I can see no good reason why the Office should not pursue the same course with respect to the novelty of an invention when granting a patent.

It is a matter of public notoriety that presser-bars of the description here claimed have been in public use for upward of twenty years. This will appear by an examination of the various publications during that period relating to this and kindred matters. Reference is made in the Scientific American for July 5, 1873, vol. 29, p. 7, and November 20, 1875, vol. 33, p. 25, to the invention in controversy as having been for years in public use.

In addition to this evidence of notorious public use, we find three decisions by Mr. Justice Nelson (Gibson vs. Betts et al., 1 Blatch., 163, decided June term, 1846; Gibson vs. Harris, 1 Blatch., 167, October term, 1846; and Gibson vs. Van Dresar, 1 Blatch., 535, June term, 1850).

In the two former cases the machines used are described as embodying the very invention here claimed, which was held to be substantially the same as that patented to William Woodworth, December 27, 1828, and in the last case mentioned the opinion on this point was reiterated. This affords additional evidence of the notorious public use, and has a very important bearing upon the question as to the novelty of Anson's invention in view of the patent to Woodworth referred to.

The Examiner admits having such knowledge, and, in fact, it has been a topic of much discussion in this Office, and was particularly about the time of the grant of Woodbury's patent in 1873. Further than this, it appears from the preliminary statement filed by Anson in the first interference, a certified copy of which is here presented, that he constructed, under contract with one Shepard, in Norwich, Connecticut, a machine such as is described in his present application, and put the