burden is heavily upon the appellant to establish error. To reach a conclusion in this case different from that reached by the Patent Office it would be necessary for us to discredit at least three witnesses, whose credibility is in no way impeached and whose testimony is reasonable and free from suspicion. This we cannot do, for there must be a substantial basis for discrediting such witnesses. It follows that the decision must be affirmed. Affirmed. [Court of Appeals of the District of Columbia.] IN RE THE AMERICAN SUGAR REFINING COMPANY. Decided February 4, 1918. 250 O. G., 255; 47 App. D. C., 199. TRADE-MARKS-DESCRIPTIVE-" KANELASSES" FOR MOLASSES. The word "Kanelasses" applied to cane-molasses is clearly descriptive. The law cannot be “avoided by merely resorting to phonetic spelling.” Mr. F. L. Fishback and Mr. Edwin S. Hall for the appellant. ROBB, J.: Appeal from a decision of the Patent Office denying registration of the word "Kanelasses " as a trade-mark for food-syrup. The syrup to which this mark is applied is made from sugar-cane. We think the test is whether the words "cane molasses" would be registerable. Obviously they would not, for these words would aptly describe applicant's product, which is cane-molasses or cane-syrup. We have repeatedly said that the law prohibiting such registrations could not be avoided by merely resorting to phonetic spelling. The mark"Kanelasses" conveys, and obviously was intended to convey, to the purchasing public definite information as to the character of the product sold under it. Certainly any producer of cane-molasses would be entitled to sell it under that name. It follows, therefore, that the Patent Office properly refused registration to this applicant. The decision is affirmed. Affirmed. [Court of Appeals of the District of Columbia.] CRAGG V. STRICKLAND. Decided March 4, 1918. 250 O. G., 255; 47 App. D. C., 433. INTERFERENCE-PRIORITY-DILIGENCE. Where S. completed drawings of the device of the issue just prior to C.'s entry into the field and immediately commenced the construction of a ma chine and was diligent until the filing of his application, which was a few months after C. filed his application, Held that priority was properly awarded to S. Mr. C. J. Williamson for the appellant. Mr. R. F. Rogers for the appellee. ROBB, J.: This is an appeal from concurrent decisions of the Patent Office tribunals in an interference proceeding in which priority of invention was awarded Strickland. The proceeding is novel in that there is involved but a single count, reading as follows: In a tobacco stemming machine, the combination with means for feeding the leaves, of means engaging and acting on the stem butts for separating the latter and passing them singly to a stemming machine. The invention relates merely to a feeding mechanism, as tobaccostemming machines were old. Cragg entered the field early in June, 1905, and his application was filed two months later or on August 5, 1905. For sometime previous to Cragg's date of conception Strickland had been endeavoring to perfect an improved stemming-machine, of which the feeding mechanism of the issue was to be a part. There is evidence that drawings of this stemming-machine and including the device of the issue were completed just prior to Cragg's entry into the field and that immediately thereafter the construction of a machine in accordance therewith was commenced and that this work progressed without interruption until the filing of the Strickland application early in December of 1905. Each of the tribunals of the Patent Office has ruled that this amounted to diligence, and this ruling we accept. There is no doubt that Strickland was the first to conceive the invention and, while it is true that work on an independent device does not constitute diligence, it does not necessarily follow that because one applicant has completed his invention in a given time the other will be charged with a lack of diligence if he exceeds that time in perfecting his embodiment of the invention. Where the claim is general, as here, one embodiment may be more complicated than another. Certainly we are not prepared to say, under the evidence before us, that Strickland was not proceeding in good faith to complete his embodiment when Cragg entered the field, nor do we find him lacking in reasonable diligence from that time until the filing of his claim a few months later. The decision is affirmed. Affirmed. [Court of Appeals of the District of Columbia.] IN RE CARVALHO. Decided April 1, 1918. 250 O. G., 514; 47 App. D. C., 584. 1. ABANDONMENT OF APPLICATION-APPEAL FROM THE DECISION OF COMMISSIONER-JURISDICTION OF COURT OF APPEALS OF THE DISTRICT OF COLUMBIA, Where the Commissioner of Patents decided that the showing made is not sufficient to establish that the delay in the prosecution of an application was unavoidable within the meaning of section 4894, Revised Statutes. Held that his action is not reviewable on appeal to the Court of Appeals of the District of Columbia. 2. JURISDICTION-COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. The jurisdiction of the Court of Appeals of the District of Columbia to entertain appeals from the decision of the Commissioner of Patents embraces but two classes of cases: first, where an application for a patent or the reissue of a patent has been twice rejected by the Primary Examiner, then by the Examiners-in-Chief, and afterward by the Commissioner, and second, where the Commissioner in an interference has awarded priority to one of the parties. 3. SAME-SAME. As C.'s application was not twice rejected by the Primary Examiner nor passed upon by the Examiners-in-Chief, Held that its rejection was not one of those contemplated by section 4909. Mr. E. Clarkson Seward for the appellant. Mr. T. A. Hostetler for the Commissioner of Patents. SMYTH, C. J.: More than two years after his application for a patent had been abandoned under section 4894, Revised Statutes, Carvalho applied to the Commissioner of Patents to reinstate the application. This the Commissioner refused to do because the applicant failed to satisfy him in the language of the section just referred to that "the delay was unavoidable." Carvalho appeals. Our jurisdiction is questioned. The statutes bearing upon the subject are as follows: SEC. 4909. Every applicant for a patent or for the reissue of a patent, any of the claims of which have been twice rejected, and every party to an interference, may appeal from the decision of the Primary Examiner, or of the Examiner in Charge of Interferences in such case, to the Board of Examinersin-Chief; having once paid the fee for such appeal. SEC. 4910. If such a party is dissatisfied with the decision of the Examinersin-Chief, he may, on payment of the fee prescribed, appeal to the Commissioner in person. SEC. 4911. If such party, except a party to an interference, is dissatisfied with the decision of the Commissioner, he may appeal to the Supreme Court of the District of Columbia sitting in banc. (Rev. Stats.) The last section was superseded by the following: SEC. 9. That the determination of appeals from the decision of the Commissioner of Patents now vested in the general term of the Supreme Court of the District of Columbia, in pursuance of the provisions of section seven hundred and eighty of the Revised Statutes of the United States, relating to the District of Columbia, shall hereafter be, and the same is hereby, vested in the court of appeals created by this act; and, in addition, any party aggrieved by a decision of the Commissioner of Patents in any interference case may appeal therefrom to said court of appeals. (27 Stat. L., 436.) In an interference the power of the Commissioner is limited by section 4904, Revised Statutes, to the question of priority of invention. Therefore, our jurisdiction embraces but two classes of cases: First, where an application for a patent or the reissue of a patent has been twice rejected by the Primary Examiner, then by the Board of Examiners-in-Chief, and afterward by the Commissioner; and, second, where the Commissioner in an interference has awarded priority to one of the parties. It was so held by this court after a careful examination of the matter in Cosper v. Gold (C. D., 1910, 282, 285; 151 O. G., 194, 195; 34 App. D. C., 194, 198) and in re Fullagar (C. D., 1909, 270; 138 O. G., 259; 32 App. D. C., 222). The appeal before us falls within neither class. True, the action of the Commissioner may in effect result in Carvalho's failure to get a patent, for it is possible that if he filed a new application, which he would have a right to do, he would encounter the bar of public use. This, however, is not a necessary result of the rule we announce, because in most cases a new application would save the applicant's rights. If it would not in any case, the result would be due to the applicant's dilatoriness, not to the law. However that may be, Carvalho's application for a patent was not twice rejected by the Primary Examiner, nor was it ever passed upon by the Board of Examiners-in-Chief. Its rejection therefore is not one of those contemplated by section 4909. For these reasons we are without jurisdiction to review the decision of the Commissioner. In reaching this conclusion we do not forget that this court announced a different doctrine in Selden's case (C. D., 1911, 306; 164 O. G., 741; 36 App. D. C., 428), Moore v. Heany (C. D., 1909, 488; 149 O. G., 831; 34 App. D. C., 31), and in Mattulath's case (C. D., 1912, 490; 179 O. G., 853; 38 App. D. C., 497). This doctrine, however, is not only inconsistent with the rulings in the Cosper and Fullager cases, but also with the quoted statutes, and is therefore disapproved. The appeal is dismissed. Dismissed. [Court of Appeals of the District of Columbia.] MACCONNELL v. WOOD. Decided March 4, 1918. 250 O. G., 767; 47 App. D. C., 424. INTERFERENCE-PRIORITY-STEREOTYPE-PLATE-FINISHING MACHINE. Where W. had completed working drawings of the device of the issue and had filed his application prior to the dates on which M. completed his machine or filed his application, Held that priority was properly awarded to W. Mr. C. J. Sawyer for the appellant. Mr. L. W. Southgate for the appellee. VAN ORSDEL, J.: This is an appeal in an interference proceeding, the subject-matter of which relates to stereotype printing plates. The issue is defined in the following counts: 1. In a stereotype plate finishing machine, the combination of means for first finishing the plate, means for thereafter applying a cooling fluid to the plate, and a support arranged so that the plate will be directed from the finishing means to a position where it may be acted upon by the cooling means and the truth of the finished plate preserved. 2. In a stereotype plate finishing machine, the combination of a runway or guide along which semicylindrical plates can be guided on their straight edges, and a finishing mechanism, and a cooling mechanism arranged so that the plates will be guided by the straight edges through the finishing mechanism on and through the cooling mechanism. 3. In a stereotype plate finishing mechanism the combination with a finishing device having means for freely supporting a plate therein after it is finished, and a series of rollers arranged in alinement with said supporting means for receiving plates therefrom, of a cooling arch located over said rollers and adapted to cool the plate as it passes along the same. The Examiner of Interferences awarded priority to Wood as to count 3 and to MacConnell as to counts 1 and 2. On appeal the Board of Examiners-in-Chief reversed the Examiner of Interferences as to counts 1 and 2, awarding priority as to all counts to Wood. On appeal the Commissioner of Patents affirmed the Board of Examiners-in-Chief, and from this decision the case was appealed to this court. The invention is described in the opinion of the First Assistant Commissioner, as follows: The invention relates particularly to the finishing of stereotype plates and especially to the means for cooling these plates in the machine in which they are finished. Prior to the present invention it was customary to cool the plates by removing them from the finishing mechanism and dipping them in a water bath. This was open to several objections and in the devices of the |