vs. Avery and DeLill, (C. D., 1870, p. 128,) or that of Chase and White vs. Chase, (C. D., 1873, p. 99.)

The decision of the Board of Examiners-in-Chief is accordingly af. firmed, and the patent—the Examiner being satisfied with the propriety of the claims and all other requirements of the law coinplied with-will issue to Kieth, Shaw & Videto.

CHAŞE vs. WITTER.

Interference.

0. G., vol. ix, p. 593.

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

OF LUCIUS C. CHASE AND HENRY M. WITTER FOR LETTERS PATENT FOR “IMPROVED SURCINGLE."'-Decided

March 3, 1876.
Where an inventor has developed his invention so far as to make a model or article

showing clearly the subject-matter of his invention, and exhibits the same to oue more skilled than himself, and the latter inyents a machine to produce the same prod uct, he will be considered as a skilled mechanic, who uses the knowledge imparted to him by another, and not as the inventor of the product.

SPEAR, Acting Commissioner:

The invention in controversy is a surcingle, part of which is woven solid and part double or tubular, the tubular portion being adapted to receive and hold padding. For this invention Witter has received a patent granted on the 16th day of March, 1875. The application of Chase was filed on the 11th day of May of the same year.

The burden of proof is therefore undoubtedly upon Chase. Upon what I consider to be the principal facts in this case there is little or no dispute between the parties. It is admitted that Chase, who was a dealer in this class of goods, was the tirst to suggest a surcingle woven, in part tubular, and in part solid, in accordance with the description given in the patent of Witter and in the application of Chase now in interference. Chase also first made a model representing the invention as nearly as he could, not being himself skilled in this art, and unable by his own effort to make the article in its proper form.

The model was made by using a strip tubular throughout and sewing it at the proper place, leaving a pocket to be filled with a padding. But having conceived of this invention and proceeded as far as he was able by his own effort, Chase next applied to Witter, who was a manufacturer of the class of articles to which this invention belongs, and who had supplied Chase with large quantities of the material used by him in his business, which was that of a manufacturer of horse clothing.

It appears also that Witter promised to experiment upon the article and see if it could be made, and that it was a matter of inquiry on the part of Chase when this would be done. Chase also made inquiries of other manufacturers as to the feasibility of making the surcingle in accordance with his idea.

It is conceded that the article could be made without difficulty upon the looms then existing without any change in their structure; but that by reason of the time required, and additional force necessary in weaving surcingles in this way, it would not be profitable to manufacture them.

I think it is proved that Witter was employed by Chase to perform this work, and that the fact that he invented a loom by which it could be done economically does not entitle him to claim the article, since the article itself could be produced by machines then in existence, and without any further invention.

The machine, whatever it may have been, or whatever the improvement invented by Witter, is altogether distinct from the article in controversy. That was the invention of Chase. Supposing this machine never to have been invented, that Chase had gone to Witter as the manufacturer of this class of articles, and the party accustomed to furnish him with such goods, and in compliance with Chase's request Witter had woven, upon a jacquard or fancy loom, the article, in accordance with the request, in such case I think there would be no thought of Witter as the inventor of the article. He would in that case have acted under the instructions of Chase beyond all doubt, and would have been simply performing the part of an ordinary workman operating the loom in accordance with the directions of the inventor, and weaving part of the web solid and part tubular in the proportions specified. So far as appears the article produced would have been as perfect, as fairly and fully embodying the invention in dispute, as any that can be produced by Mr. Witter's machine.

I do not see how the fact of the invention by Witter of the improved machine for making these articles more rapidly and cheaper can change the origin of the invention.

In my judgment Witter was in no sense the inventor of the surcingle in controversy; that the part he acted was simply that of a workman, and that the invention rightfully belongs to Chase.

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

DUNDAS DICK & CO.

Trade-Mark.

O. G., vol. ix, p. 538.

APPEAL FROM THE DECISION OF THE EXAMINER OF TRADE-MARKS IN THE MATTER OF THE APPLICATION OF DUNDAS DICK & CO., FOR THE REGISTRATION OF A TRADE MARK FOR MEDICAL PREPARATIONS.-Deeided March 8, 1876.

A word that is merely descriptive and used in its ordinary signification cannot be registered as a trade-mark.

An exclusive use can never be sucessfully claimed of words in common use,

previously

applicable to similar articles.

No property can be acquired in words, marks, or devices that denote only the nature, kind, or quality of the articles to which they are applied.

DUELL, Commissioner :

Applicant seeks to register the following symbol as a trade-mark applied to drugs and medicines made by him:

D. D. & Co.

Tasteless.

The letters D. D. & Co. have been recently added as an amendment, the word "Tasteless" originally comprising the whole of the proposed trade-mark.

This word was rejected, both by the Examiner and the Acting Commissioner, on the ground that it was purely descriptive and used in its ordinary signification; that it could not be considered in this case as a word arbitrarily chosen; and that it was either descriptive or untrue. "An exclusive use," it was said, quoting from Wolfe vs. Goulard (Cox's Am. Trade-Mark Cases, 229,) "can never be sucessfully claimed of words in common use previously applicable to similar articles."

$

I agree with the views of the Examiner and Acting Commissioner on this point, to which may be added the opinion of the court in the case of Stokes vs. Landgraff, (17 Barb., 608,) reiterating the doctrine estab lished in the case of the Amoskeag M'nft'g Company vs. Spear, (2 Sand. Sup. Ct. R., 599.) "In respect to words, marks, or devices, which do not denote the goods or property, or particular place of business of a person, but only the nature, kind, or quality of the article in which he deals, a different rule prevails-no property in such words, marks, or devices can be acquired. There is obviously no good reason why one person should have any better right to use them than another. They may be used by many different persons at the same time in their brands, marks, or labels on their respective goods with perfect truth and fairness. They signify nothing, when fairly interpreted, by which any dealer in a similar article could be defrauded.”

If this word had been applied to other classes of merchandise, such as cloths, crockery, &c., there would be some reason for regarding it as a fanciful term; but when applied to medicines it signifies a very desirable quality therein. It is a representation that would have controlling weight with a great majority of purchasers.

A few traders, like the two whose affidavits have been filed in this case, may have, by experience, been undeceived as to applicant's purpose in the use of this word; but not so with the general public.

The case of "Davis' Pain Killer" is cited and relied upon by appli cant in support of his position. But in that case the court treated the word as a label indicative of the nature of the compound.

Said the court, "Trade-marks may be, first, the name of the maker; second, symbolical; third, the name of the compound. Of this last kind is the trade-mark of the plaintiff, Pain Killer." (Davis vs. Kendall, Am. Trade-Mark Cases, 112.) Under the law as it then stood mere labels were protected as trade-marks. Under the present law, the word "painkiller" could be registered as a label, and not as a trade-mark, and so with other words denoting quality.

There is no escaping the fact that this word is a mere label, or is deceptive. Any one has a right to use this word, descriptive of the medicines he may make. But applicant, by a deceptive use of the word, seeks to put himself in a position to restrain others who may use it truthfully. Further distinctions, illustrations, and arguments in support of the position here taken are copiously set forth in Browne on Trade-Marks, sections 150-181 and 276.

I am unable to see how the objection to this word is obviated by associating it with the other elements that are unobjectionable. The latter have already been registered as a trade-mark; but that is of no importance, as this combination constitutes a new mark, as counsel for applicants allege, and, consequently, its elements must be considered on their own merits.

The decision of the Examiner of Trade Marks is affirmed.

SCHUMACHER & ETTLINGER.

Label.

APPEAL FROM THE DECISION OF THE EXAMINER OF TRADE-MARKS IN THE MATTER OF THE APPLICATION OF SCHUMACHER & ETTLINGER FOR THE "REGISTRATION OF A LABEL."-Decided March 9, 1876.

A print made up of a combination of colors, figures, and words, adapted in their use to any goods or merchandise, can be properly registered as a label.

The fact that such prints are sold to others who may apply them to articles of manufacture, should not deprive the applicants of the right to the exclusive manufacture of the prints produced by them.

SPEAR, Acting Commissioner:

It appears from the record that these applicants applied for the reg istration of a certain print, the proper number of copies of which were attached to the application.

The print is made up of a combination of colors, figures, and words. It is represented that the applicants are printers, and produce these prints or labels, not for application by them to any class of goods, but for sale to dealers generally, to be applied by such dealers to any goods for which they may be deemed suitable.

A certificate of registration was refused by the Examiner, first, because the print amounted to a trade-mark, being purely an arbitrary symbol, and not in any one of its features descriptive; second, because it may become a trade-mark by adoption and use; and as applicants desire to multiply and sell copies of it, it would seem that protection should be sought under the law as a new and original design; and that to entitle the label to registration under the act of June 18, 1874, it must be "intended to be used for some article of manufacture."

The position taken by the Examiner, that the print is not intended for use for any article of merchandise, and therefore not capable of registration as a print or label, does not appear to me tenable.

It appears from an inspection of the print, as well as from the statements of counsel for the petitioners, that this print is not "connected with the fine arts," but that it is designed for articles of manufacture. Now if it is not connected with the fine arts as an engraving, cut, print, or photograph, or painting, or any such thing recognizable at once as belonging to the fine arts, then these petitioners could have no protec tion by registration with the Librarian of Congress. If they have none here, then none is provided for in law. But the registration of trademarks in the Patent Office is an offshoot of the copyright law, and I understand that these prints or labels, whenever they are intended for use with articles of manufacture, may be registered in the Patent Office on exactly the same terms and conditions, except that a larger fee is paid, as works of art may be registered with the Librarian of Congress.

The fact that these parties make and sell these prints and do not themselves apply them to articles of manufacture should not, in my judgment, deprive them of protection in the right of exclusive manufacture of the thing which they have produced. There is no such requirement in the law. All that is there prescribed is that the prints or labels must be such as are "designed for use" for articles of manufacture. Nor in this case could the print be considered a trade-mark, inasmuch as it is not appropriated to any particular class of goods. The protection which they seek and which a certificate of registration will give them, is no more than protection in the exclusive right to make and sell this particular print.

The decision of the Examiner is reversed.

C. W. BALDWIN.

Appeal.

O. G., vol. ix, p. 639.

APPEAL FROM THE DECISION OF THE PRINCIPAL EXAMINER IN THE MATTER OF THE APPLICATION OF CYRUS W. BALDWIN FOR LETTERS PATENT FOR "IMPROVEMENT IN YDRAULIC ELEVATORS."-Decided March 14, 1876.

A drawing accompanying an application for letters patent may be used as evidence to show the nature of the original invention.

Where letters patent issued, and the drawings attached to the patent did not include a figure or drawing filed with the original application, upon an application for reissue of such patent, claims can be based upon the figures or drawings originally filed, even if such figures or drawings had been canceled before the issue of such patent. The model might be a basis for reissue, although forming no part of the patent, and

a drawing may as clearly show the invention as a model, and is as little liable to be tampered with.

The general tenor of the decisions of the courts is to the effect that an applicant for reissue should be entitled to make the corrections which he might properly have made after filing his original application.

SPEAR, Acting Commissioner:

The appeal is from a refusal of the Examiner to consider the patentability of certain matter sought to be introduced into the patent in this