path of movement of such member, so as to arrest it before the striking part reaches the paper. The claims are four in number, 37, 38, 39, and 40; 37 and 40 read as follows: 37. The calculating machine, having type and hammers for pressing the paper against the type, said hammers having hinged heads, made separate from the bodies, actuating springs attached to the heads, and means for arresting the heads before the hammers can make the impressions, substantially as specified. 40. In a machine for printing numbers, a printing hammer made in two parts, and hinged together, one part receiving the actuating power and imparting it to the other, and being itself arrested before the making of the impression, substantially as specified. Counts 38 and 39 do not differ materially from count 37. In Mr. Felt's specification he directs attention to his prior patents and to the fact that his hammers differ from those previously shown. in that each is made with a head separate from the rest or main body of the hammer. My object says his specification— in this feature is to soften the blow against the type and allow the hammer to drop back a little from the paper immediately after striking, the head being actuated by the spring H14b and being hinged to the same shaft A14 which supports the body portion of the hammers and, being also adapted to bear upon the body at H14c, and thus to give the body the impulse of motion necessary to carry it against the type, but being itself arrested by a stop-rod H14d, extending transversely of the series of hammers, before the hammer reaches the paper. In one of Mr. Felt's prior patents, No. 441,233, dated November 25, 1890, he shows a device intended to perform the same function as that performed by the device now in issue. In the specification of the prior patent he says: Each spring 44 is connected with its appropriate hammer by a piece of straight wire 46 that is passed between the depending teeth of a toothed guide-bar 47, and in each straight piece of wire is provided a knot 48 or other suitable stop to engage the toothed guide-bar 47 and relieve the hammer from the tension of the spring 44 just before the hammer reaches the end of its stroke thereby allowing the hammer to yield slightly after delivering its blow, and thus prevent it from obstructing the subsequent movements of the type-head and ribbon. In their brief counsel for appellee admit that this device relieved the printing pressure on the hammer as soon as the hammer blow was struck. but contend that— it did not insure the hammer dropping back positively enough, as soon as its blow was delivered, to fully relieve all pressure upon the paper that had been printed upon. Counsel therefore suggest that the structure now in issue was conceived "to accomplish this more definite action." In other words, counsel take the position that, notwithstanding the enjoyment by Mr. Felt of a monopoly of this feature for the statutory period, he is nevertheless now entitled broadly to monopolize the same feature during the life of his present patent. This clearly he may not do. Unless, therefore, these claims are to be limited to the structural characteristics of the device of the issue-in other words, to the specific form of the means employed-they must fall. Since appellee's device differs from appellant's as much as appellant's differs from his prior device, we conclude that there has been no infringement of these claims. The decree will there be affirmed, with costs. Affirmed. [Court of Appeals of the District of Columbia.] STAMATOPOULOS v. STEPHANO BROS. Decided March 2, 1914. 200 O. G., 1394; 41 App. D. C., 590. TRADE-MARKS-CANCELATION-SECTION 13 OF THE ACT OF 1905-APPLIES TO REGISTRATIONS UNDER THE ACT OF 1881. Section 13 of the act of 1905 providing for the cancelation of trademark registrations applies also to registrations made under the act of 1881. Mr. E. S Duvall for the appellant. Mr. H. M. Wise for the appellee. VAN ORSDEL, J.: This action was brought in the Patent Office by appellant for the cancelation of the registration of the trade-mark "Rameses" for cigarettes, granted to appellee August 8, 1899, and September 5, 1905, respectively. The first registration was granted under the act of 1881. It was held by the Commissioner of Patents that, as to that registration, the Office lacked jurisdiction to cancel it. From this ruling the case was brought here on appeal. The right of any person deeming himself injured by the registration of a trade-mark to challenge it by a proceeding for its cancelation, is provided for in section 13 of the act of Congress of February 20, 1905, (33 Stats. L., 724) and it was under this act that this proceeding was brought. The decision of the Commissioner of Patents is to the effect that the provision of the statute relating to cancelation is prospective, and not retrospective, and, therefore, cannot be applied to trade-marks registered prior to the date of its enactment. This is the sole question involved in this case. 72367-15-11 The registration of trade-marks is regulated entirely by statute. There is no such property right acquired by registration as either forbids regulation or abolition by a subsequent act of Congress. Section 13 relates entirely to procedure in the Patent Office. The act of 1881 did not provide for challenging a registration by a proceeding for cancelation. The act of 1905 for the first time furnished this speedy and sensible remedy. Being merely remedial, and a matter of procedure, it was within the power of Congress to make it apply to all marks registered in the Patent Office. Intention to make it apply only to future marks is not indicated in the later act. Neither do we find anything to that effect in the saving clause in section 30 of the act. Provision as to cancelation did not exist in the prior acts, hence the saving clause in the later act could have no reference to that subject. There being nothing irreconcilable or unreasonable in appplying the remedy provided in section 13 to registrations allowed under prior acts, it is our duty to construe the acts in harmony. (United States v. Healey, 160 U. S., 136; State v. Stoll, 17 Wall., 425.) The decision of the Commissioner of Patents is reversed, and the clerk is directed to certify these proceedings as by law required. Reversed. [Court of Appeals of the District of Columbia.] JOHNSON v. MARTIN. Decided February 2, 1914. 201 O. G., 267; 41 App. D. C., 502. 1. INTERFERENCE-USE OF TERM "MEANS "-CONSTRUCTION OF THE ISSUE. Where the claim in issue includes "means for alternately conveying the cartons one at a time from said streams to the conveyer," Held that as there is no limitation that the means convey the cartons directly to the machine the claim should be construed broadly and includes a construction in which several elements are required to convey the cartons to the machine. 2. SAME CONSTRUCTION OF THE ISSUE-QUESTION OF PATENTABILITY HAS NO BEARING THEREON. Where it is contended that the issue should not be given a broad construction because the appellee's machine which was claimed as a reduction to practice is alleged to have been in public use more than two years before the filing of his application, Held that the question of priority is the only one before the court, and the question of a statutory bar to a patent containing the claims in interference is not in issue. Mr. F. L. Chappell and Mr. O. A. Earl for the appellant. VAN ORSDEL, J.: This is an appeal from a decision of the Commissioner of Patents awarding priority of invention to appellee. Originally, the issue embodied three counts, but the first having been awarded to appellant, and no appeal having been taken by appellee from this decision, only the second and third counts are before us for consideration. They read as follows: 2. In a machine of the character described, the combination of the following instrumentalities, a series of top flap securing devices, a conveyer for feeding the cartons to such top flap securing devices, means whereby the cartons are fed to the machine in a plurality of streams and means for alternately conveying the cartons one at a time from said streams to the conveyer. 3. In a machine of the character described, a series of top flap folding devices, means whereby glue is applied to the flaps, a carton carrying conveyer provided with a plurality of followers secured at intervals to said conveyer and adapted to convey and carry the cartons forward into engagement with said folding and glue applying devices, means whereby the cartons are fed to the machine in a plurality of streams and means for alternately conveying the cartons one at a time from said streams to the conveyer. The nature of the invention is clearly set forth in the decision of the Examiner of Interferences as follows: The machines disclosed in the applications involved in this controversy are designed for closing and sealing the top flaps of cartons after they have been filled. To accomplish this, a conveyer is provided which carries the cartons through the machine bringing them in their travel in contact with the folding, gluing and sealing mechanisms. The cartons are received from the filling machines in two rows or streams and as the conveyer of the folding and sealing machine is adapted to handle the cartons only in a single row or stream, a shifting mechanism is provided which automatically transfers the cartons one at a time and in alternate order from each of the two streams to the conveyer of the folding and sealing machine. Appellant filed his application August 4, 1908. He took no testimony, relying upon his filing date for a date of conception and of constructive reduction to practice. Appellee's application was filed on July 22, 1909. All of the tribunals below found that appellee in 1905 constructed and successfully operated a machine illustrated in "Martin's Exhibit Drawing of First Martin Machine," and that finding is not contested here. It is contended, however, that this machine does not disclose means whereby the cartons are fed to the machine in a plurality of streams and means for alternately conveying the cartons one at a time from said streams to the conveyer of the folding and sealing machine, as required by the issue. The tribunals below were unanimous in finding against this contention, and with them we agree. Appellee's first machine, on which he relies for a reduction to practice, shows the cartons fed forward in a plurality of streams until a reciprocating member forms them into a single stream on a belt, which carries them to another conveyer, from which they are delivered by a swinging arm to a conveyer which carries them into engagement with the folding and sealing devices. It will thus be seen that appellee's first machine shows means for alternately conveying the cartons one at a time from said streams to the conveyer of the folding and sealing machine. if the word "means" is to be given a construction broad enough to include the several elements there required to convey the cartons from the several streams to the folding and sealing machine. There is no limitation in the claims that the means convey the cartons directly from the several streams to the folding and sealing machine. The word "means" is used in its generic sense. When thus used, its definition has been settled by this court in the case of Lecroix v. Tyberg, (C. D., 1910, 263; 150 O. G., 267; 33 App. D. C., 586,) where the construction of the words means for transferring the bunches from the mold to the wrapping mechanism-was in issue. It appeared in that case that Tyberg's "means" consisted of three elements a rocking needle for transferring bunches from the mold, a traveling-chain support to receive the bunches from the needle-bar and transport them to a point adjacent the cigar-wrapping machine, and a horizontal swinging arm provided with grippers to lift the bunches from the chain support and transfer them to the wrapper-applying machine. The "means" described by Lecroix consisted of swinging arms which lifted the bunches from the mold and transferred them directly to the wrapping mechanism. It was there contended that the machines of the contesting parties were substantially different, but the court said: We agree with the Commissioner that the words "means for transferring the bunches from the mold to the wrapping mechanism" as used in counts 1, 2, and 3, are applicable alike to the transferring device of each party. The term "means," as used in this connection, must be held to be a generic term, and hence applicable to each species of transferring device. It follows that these counts are readable on Tyberg's structure. It is also contended by appellant that the issue should be given a strict construction because appellee's first machine had been in public use for more than two years prior to his application for patent. The question of priority is the only one with which we are concerned in this proceeding, and the question of a statutory bar to appellee's right to a patent on these claims is not in issue here. (Lecroix v. Tyberg, supra; Burson v. Vogel, C. D., 1907, 669; 131 O. G., 942; 29 App. D. C., 388.) The decision of the Commissioner of Patents is affirmed, and the clerk is directed to certify these proceedings as by law required. Affirmed. |