or subjected to the conditions of actual use. It was held that this was not enough— to demonstrate that a stay of this design would give the desired results when placed in a corset where its movement would be restricted by contact with the surrounding fabric. Paraphrasing this language, we may say of Bryant's test that it could not be held to demonstrate that the device would give the desired results when on a wheel supporting a car in motion. There is nothing in Mason v. Hepburn, supra, cited by appellants, which conflicts with the holdings of the foregoing cases. In that case it was remarked of a clip that it had been sufficiently reduced to practice because It was demonstrably capable of producing the result sought to be accomplished, viz: that of closing the magazine and clipping it to the barrel. As admitted by the Examiners “the clip evidently performed its expected office." Bryant did not demonstrate in this case that his device was capable of producing the results sought to be accomplished, which was the secure holding of a rim in place on a wheel bearing an automobile in motion. After his so-called test, Bryant says, he caused the device to be shipped from Columbus, Ohio, to Akron, same State. There it remained in a closet of his boarding-house, in the box in which it had been shipped, for upward of twelve months. In the meantime he was working on similar devices and filed at least two applications for patents, showing such devices. Why this, if he believed his first device was workable? Johnson, as we have seen, reduced his invention to practice about August, 1911, several months before Bryant removed his device from the box aforementioned. Therefore the only evidence of a reduction to practice by Bryant before Johnson is that with respect to what took place in Columbus, and that we have found to be entirely insufficient. Consequently, whether we regard the motion to amend the preliminary statement as overruled or sustained, the result must be the same. The decision of the First Assistant Commissioner was right, and it is affirmed. Affirmed. [Court of Appeals of the District of Columbia.] IN RE SUNDERLAND. Decided January 7, 1918. 247 O. G., 480; 47 App. D. C., 234. PATENTABILITY-COUPLING FOR STAY-WIRES. Claims for a coupling for stay-wires Held unpatentable in view of the prior art. Mr. C. J. Sawyer for the appellant. Mr. T. A. Hostettler for the Commissioner of Patents. ROBB, J.: Appeal from a decision of the Patent Office denying the following claims: 1. An article of manufacture consisting of a flexible rope socket comprising a solid metal base and a flexible wire rope loop, the ends of the loop being permanently secured to the base. 2. A flexible coupling for wire rope consisting of a pair of linked sockets formed of flexible wire rope loops and socket bases of solid metal, each of the loops having its ends permanently attached to its individual socket base. 3. In combination, wire ropes and a flexible insulating coupling comprising a pair of linked sockets formed of flexible wire rope loops and socket bases of solid metal to which bases the ropes are secured, each of the loops having its ends permanently attached to its individual socket base, and an insulator inserted between the flexible loops to form a mechanical connection between the sockets and to insulate them from one another. 4. In combination, wire ropes and a flexible coupling comprising a pair of linked sockets formed of flexible wire rope loops and socket bases of solid metal to which bases the ropes are secured, each of the loops having its ends permanently attached to its individual socket base, and a block having grooves at right angles for receiving the loops and inserted between the flexible loops to form a mechanical connection between the sockets. The invention, according to appellant's specification— relates generally to couplings for stay wires and the like, with particular reference to stays used in connection with aerial wireless towers which are generally insulated from the earth. The specification further sets forth that one object of the invention is to produce a stay connection having flexibility with little stretch. The Examiner was of opinion that claim 1 is met by the patents to Gillette, Hill, or Jobson, and that claims 2, 3, and 4 are— squarely met by any one of the above references taken with Brown, Fletcher, or Seymour. The Examiner further said: These claims cover merely a combination of two such loops as are shown by any one of the first three references, with an insulator such as shown by any one of Brown, Fletcher, or Seymour used between the loops. The Examiners-in-Chief sustained the view of the Examiner and pointed out that, the first claim being addressed to a single socket member reads as well upon the Hill construction as upon that of the applicant. The decision of the Examiners-in-Chief was affirmed by the Assistant Commissioner. Appellant's device may be described as two interlocking wire-rope loops separated by an insulator, such as porcelain, the ends of the ropes being permanently attached and the entire device being merely an insulated link in a stay. In other words, this insulated link in the stay, for purposes of illustration, may be likened to a swivel in a chain. The patent to Hill (No. 929,132, dated July 27, 1909) covers an insulator designed primarily for suspending trolley-wires, electric cables, or other conductors from the under side of structures of any sort. The most approved type described by Hill differs from appellant's device in that it lacks flexibility. In Hill's Figure 4, however, the loops or short pieces of cable are passed through the insulating-body in practically the same way that appellant's loops are passed through it, and the ends of the loops are permanently attached like those of appellant. It is apparent, however, that Hill was not seeking flexibility, and his loops are too short, even in Fig. 4, to admit of it. But, as pointed out by the Patent Office, any one familiar with the art who was seeking a flexible insulator of the Hill type would have had no difficulty in constructing such a device by combining the Hill and the Fletcher or Jobson devices. The Fletcher patent (No. 1,028,104, and dated June 4, 1912) relates to a strain-insulator in a stay or guy wire, as does appellant's device, the only difference between the two devices being the manner in which the ends of the Fletcher loops are attached and the shape of those loops. That there is flexibility in the Fletcher device is certain, for the width of the groove in the insulated material is "of sufficient size to easily accommodate the wire" (of the loop). In other words, whether Fletcher appreciated the importance of this or not, his drawings and specification clearly diclose it. The Jobson patent (British, No. 15,523, of November 25, 1884) disclosed means similar to that employed by appellant for attaching the ends of the loop. We conclude, therefore, as did the Patent Office, that appellant's efforts did not rise to the dignity of invention. Any good mechanic, by referring to the patents cited, could have produced the same result. The decision is affirmed. Affirmed. [Court of Appeals of the District of Columbia.] IN RE CREVELING. Decided June 5, 1917. 247 O. G., 747; 46 App. D. C., 536. 1. APPEAL TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA-RIGHT TO MAKE THE CLAIMS OF A DISSOLVED INTERFERENCE IN AN EARLIER APPLICATION. Where the court dismissed C.'s appeal from a decision of the Commissioner of Patents dissolving an interference and denying C.'s motion to amend on the ground that the invention was not disclosed in an earlier application of C. relied upon to carry his date back of a reference cited against the application which was involved in the interference, Held that C. is not entitled to have the question reviewed on an ex parte appeal from a decision in that earlier application, denying his right to make the claims therein. 2. ELECTION-RHEOSTAT AND SYSTEM. Where C. elected to claim a system of which the carbon rheostat is an element, Held that he is estopped from afterward claiming the rheostat per se in that application. Mr. Chas. McC. Chapman and Mr. Delos G. Haynes for the appellant. Mr. T. A. Hostetler for the Commissioner of Patents. ROBB, J.: This appeal is from a decision of the Commissioner of Patents rejecting claims Nos. 7 to 16, inclusive, of appellant's application for patent. We reproduce claims Nos. 7, 13, and 16, as sufficiently illustrative: 7. In an arrangement of the class described, a carbon pile, a lever operating upon one end of said pile and extending toward the other end of the pile, and a second lever operating on the second-mentioned end of said pile and extending toward the first mentioned end of said pile. 13. In an arrangement of the class described, a carbon pile, a lever having an arm operating upon one end of the pile and another arm extending toward the other end of the pile, a second lever having an arm operating upon said second-mentioned end of the pile and another arm extending toward the firstmentioned end of the pile, an electroc-magnetic device, and means coöperating with the said levers and electro-magnetic device for actuating said levers. 16. In an arrangement of the class described, a carbon pile, a lever arranged to operate upon one end of the pile, a second lever arranged to operate upon the opposite end of the pile, an electro-magnetic device connected to one of the levers for operating the latter, an electro-magnetic device and connections between the latter and the other lever whereby the latter may be actuated, the combination being such as to vary the action of the two levers upon the carbon pile. Each of the three tribunals of the Patent Office, including the Commissioner in person, rejected claims Nos. 7 to 13, inclusive, on the ground that they cover substantially the same subject-matter of invention as was involved in interference No. 36,115, and each tribunal required all the claims here involved to be erased from this case because they are limited to the details of a carbon-pile rheostat, whereas claims Nos. 1 to 6 are limited to a system of which the rheostat is an element, the Office holding that, by electing to claim a system of which the carbon rheostat is an element, appellant is estopped from now claiming the element per se. The first ground of rejection clearly was correct. Interference No. 36,115 (Creveling v. Jepson) involved an application filed by Creveling September 22, 1911. Prior to the interference a patent to Sherbondy, No. 989,305, was cited against the Creveling application, and to overcome that patent Creveling directed attention to two previous applications filed by him, the earlier of which is the one here involved. Thereupon the interference, with a count identical in language with claim No. 7, here appealed, was declared. Upon motion by Jepson the interference was dissolved on the ground that the subject-matter was not disclosed in the Creveling application at bar, nor in the other Creveling application referred to. An appeal was taken to this court, which was dismissed on the authority of in re Fullagar (C. D., 1909, 270; 138 O. G., 259; 32 App. D. C., 222) and Cosper v. Gold (C. D., 1910, 282; 151 O. G., 194; 34 App. D. C., 194). In those cases it was ruled that an order dissolving an interference may not be appealed from independently of a final decision putting an end to the litigation; that, when that decision has been made, the interlocutory order may be reviewed under an appeal from that decision. When Creveling's appeal was dismissed he abandoned it and thereafter, in the present ex parte case, attempted to raise the same question that had been raised and determined in the interference proceeding. That, we have held, may not be done. (Newcomb Motor Co. v. Moore, C. D., 1908, 332; 133 O. G., 1680; 30 App. D. C., 464; Sutton v. Wentworth, C. D., 1914, 210; 204 O. G., 320; 41 App. D. C., 582.) In the Newcomb Motor Co. case we said: The remedy of the defeated party is by way of appeal. He has no right whatever thereafter to prosecute the claims of the issue in an ex parte case. The remedy of appellant, therefore, was to await a final decision in the interference proceeding, whatever might be the form of that decision (Moore v. Heany, C. D., 1909, 488; 149 O. G., 831; 34 App. D. C., 31; in re Selden, C. D., 1911, 306; 164 O. G., 741; 36 App. D. C., 428), and appeal therefrom to this court. We have carefully read appellant's criticism of the decision of the Patent Office on the second ground of rejection, but we find no error in that decision. As originally filed appellant claimed a system, of which the rheostat is an element. We agree with the Patent Office that he now is estopped from claiming an element per se which has attained a distinct status in the art, as has this one. The decision is affirmed. Affirmed. [Court of Appeals of the District of Columbia.] LAMBERT PHARMACAL COMPANY v. MENTHO-LISTINE CHEMICAL COMPANY. Decided December 3, 1917. 247 O. G., 965; 47 App. D. C., 197. 1. TRADE-MARKS-SIMILARITY—"LISTERINE" AND "MENTHO-LISTINE." The word "Mentho-Listine" refused registration as a trade-mark in view of the prior registration of the word "Listerine" for the same class of goods. |