Mr. Chief Justice SMYTH concurring specially: I concur in the opinion and judgment of Mr. Justice Van Orsdel on the ground of stare decisis. It seems to me that if the rule so often announced by this court either directly or inferentially is to be changed, it should be done by Congress and not by the court. If, however, the question was one of first impression, I would join in the conclusion announced by Mr. Chief Justice McCoy. Mr. Chief Justice McCoy dissenting: The statute concerning the registration of trade-marks provides, among other things, as follows: * may obtain regis That the owner of a trademark used in commerce tration for such trademark by complying with the following requirements. (Here follow provisions in relation to the application for registration.) SEC. 2. That the application * must be accompanied by a written declaration * to the effect that the applicant believes himself * * * to be the owner of the trademark sought to be registered; trademark is used in commerce * * * * that such That no mark by which the goods of the owner of the mark may be distinguished from other goods of the same class shall be refused registration as a trademark on account of the nature of such mark unless such mark consists of or comprises immoral or scandalous matter. (Sec. 5 a.) Consists of or comprises the flag, coat of arms, or other insignia of the United States Provided, That no mark which consists merely in words or devices which are descriptive of the goods with which they are used or the character or quality of such goods shall be registered under the terms of this * * * It has been decided by this court that a trade-mark which comprises words merely descriptive cannot be registered, but that is not what the statute says. I cannot see that the proviso in regard to the use of descriptive words needs to be construed, for the language is perfectly plain, but if I am wrong in this then the proper construction of it is made certain by other parts of the section; namely, those where the statute reads "consists of or comprises." (Italics mine.) The trade-mark law is nothing but a registration act. (Elgin Watch Co. v. Illinois Watch Co., C. D., 1901, 273; 94 O. G., 755; 179 U. S., 665.) In refusing registration to marks consisting merely in words or devices which are descriptive the act codified the law found in the decisions because a mark of that kind was not given protection in equity. (Brown Chemical Co. v. Meyer, C. D., 1891, 346; 55 O. G., 287; 139 U. S., 540.) Nothing else was decided in Standard Paint Co. v. Trinidad Asphalt Co. (C. D., 1911, 530; 165 O. G., 971; 220 U. S., 446), cited in the present opinion of Mr Justice Van Orsdel. A so-called common-law trade-mark containing descriptive words is protected in equity. (Singer Mfg. Co. v. June Mfg. Co., C. D., 1896, 687; 75 O. G., 1703; 163 U. S., 169; McLean v. Fleming, C. D., 1878, 262; 13 O. G., 913; 96 U. S., 245, p. 256 and passim; Williams v. Mitchell, C. D., 1901, 445; 96 Q. G., 2411; 106 Fed. Rep., 168; Leather Cloth Co. v. American Leather Cloth Co., Ho. Lords Cas., 1864-1866, vol. 11523; Siero v. Proverende, 1865, 1 L. Rep., 191; Redway v. Banham, 1896, App. Cas., 199; Montgomery v. Thompson, 1891, App. Cas. L. Rep., 217; Raggett v. Findlater, 1873, 17 Eq. Cas., 29; Russia Cement Co. v. Lepage, 147 Mass., 206, 211.) In the brief for the Commissioner of Patents it is stated as follows: The recent decisions of the courts, such as Nairn Linoleum Co. v. Ringwalt Linoleum Works; O. W. Thum Company v. Dickinson, and others that have interpreted the statutes, have to some extent changed the practice in the Patent Office, which Office is governed by the decisions of the courts. This is a respectful way of saying that the decisions of this court have revolutionized the practice in the Patent Office so far as concerns the matter here in question. The decisions of this court in cases where registration has been refused to trade-marks comprising descriptive words seem to be based upon some intention of Congress said to be expressed in the proviso which reads as follows: That trade-marks which are identical with a registered or known trademark owned and in use by another and appropriated to merchandise of the same descriptive properties or which so nearly resemble a registered or known trade-mark owned and in use by another and appropriated to merchandise of the same descriptive properties is likely to cause confusion or mistake in the mind of the public or to deceive purchasers shall not be registered, and in the present opinion of Mr. Justice Van Orsdel he says: The statute not only prohibits the registration of marks which are descriptive, but of marks which would be likely to cause confusion in trade. So it does, provided that the confusion likely to arise would come from the registration of a mark identical with a registered or known trade-mark or so nearly resembling a registered or known trademark as to be likely to cause confusion. Counsel for the Commissioner of Patents does not contend that the mark here in question is identical with or resembles any registered or known trade-mark, and the Commissioner of Patents did not refuse registration on either of these grounds. It is said that in the matter of registration of trade-marks that the Commissioner represents the public. So does any other public official; but he misrepresents the public if he acts in contravention of the statute. If Congress intended to make him a chancellor it was also very careful to limit the scope of his powers. I do not find any warrant in the statute for permitting an applicant to secure registration of a trade-mark after eliminating any part thereof. The statute is clearly against such practice, for it says, as already quoted, that it is "the owner of a trade-mark used in commerce" who is entitled to have it registered. He can register only what he has used. (Elgin Watch Co. v. Illinois Watch Co., supra, where the court said:) Trade-marks are not defined by the act, which assumes their existence and ownership, and provides for a verified declaration by applicants for registration that they have the exclusive right to the particular trade-mark sought to be registered. I dissent, though I would not do so had the previous decisions of this court established a rule of property. [Court of Appeals of the District of Columbia.] Decided May 27, 1918. 252 O. G., 247; 48 App. D. C., 149. INTERFERENCE-PRIORITY. Concurrent decisions of the Patent Office tribunals affirmed and Held that priority was properly awarded to W., as the early experiments of R. constituted merely an "abandoned experiment," and, besides, any rights he may have had thereby were lost by concealment and suppression. Mr. Geo. D. Beattys for the appellant. Mr. Robert C. Mitchell for the appellee. VAN ORSDEL, J.: This appeal is in an interference proceeding, the subject-matter of which is described by the Commissioner of Patents as follows: The invention relates to an apparatus for producing perforated note sheets which are so perforated that when used in connection with a suitable reproducing instrument the composition will be produced as to tempo changes and dynamics as originally rendered by the player. The issue is in four counts, of which the following is illustrative: 1. In an apparatus for producing perforated note sheets for music playing instruments, a cutter apparatus including cutters for forming in a sheet note perforations, and a separate cutter for forming in said sheet expression controlling perforations, a manually controllable player apparatus, said cutter apparatus and said player apparatus being so arranged as to operate simultaneously and coöperatively, the speed of one being variable relatively to the speed of the other, the speed of the latter being substantially uniform, means between said player apparatus and said cutter apparatus for controlling the moment and duration of operation of the cutters for forming note perforations in the sheet being perforated, and means between the player apparatus and the cutter apparatus for controlling the moment of and duration of operation of the cutter for forming the expression controlling perforations in the sheet being perforated. The tribunals below concur in holding that White is entitled to priority. Where this occurs, and the case, as in this instance, turns wholly upon questions of fact, the finding below will not be disturbed except where manifest error has been committed. White took no testimony, relying upon his filing date. The tribunals below held that, while Rees showed that some experiments along the line of the invention had been made as early as 1909, it was unnecessary to determine whether they amounted to a conception of the invention: since, if they did, he has lost his right by concealment and suppres sion, and what he did at that time amounted only to an abandoned experiment. Upon careful consideration of the whole case, we concur in the unanimous holding of the tribunals below. The decision of the Commissioner of Patents is affirmed, and the clerk is directed to certify these proceedings as by law required. Affirmed. 1. PATENTABILITY [Court of Appeals of the District of Columbia.] IN RE BECHMAN. Decided March 4, 1918. 252 O. G., 503; 47 App. D. C., 446. PRINTING-PRESS-INK-FOUNTAIN CONTROL. In an application for an ink-fountain having regulating devices, individual operating means therefor, and electric controlling devices located at a point remote from the fountain Held that a claim was patentable over the prior art, although not limited to electric controlling devices. 2. SAME-SAME. Certain claims not limited to centrally-located controlling devices for adjusting the individual regulating devices of printing-press-ink-fountains Held to be too broad in view of the art of record. Mr. Arthur E. Dowell for the appellant. Mr. T. A. Hostetler for the Commissioner of Patents. ROBB, J.: Appeal from a decision of the Patent Office tribunals rejecting claims 1, 2, 3, 5, 6, 8, 9, 11, 12, 13, 15, 17, 19, 21, 22, 23, 24, 25, 27, 28, and 30 in appellant's application for patent. Claims 2 and 11 sufficiently illustrate the rejected claims and read as follows: 2. In combination a fountain provided with a plurality of devices for regulating the supply from different points thereof, with electrically controlled means for independently operating the adjusting devices. 11. In combination with an ink fountain having adjustable devices for regulating the amount of ink delivered by the fountain, and means for individually operating said devices; with controlling devices located at a point remote from the fountain, and connection between said controlling devices and the several operating means, substantially as described. The invention relates to a control for inking-fountains in printingpresses and marks a distinct and radical advance in the art. In his specification the applicant says: This invention has particular reference to inking mechanism for large printing presses and other color applying machines, and its major object is to enable the amount of ink supplied from any ink fountain to be controlled by means located at any desired point remote from the fountain; and whereby different amounts of ink may be supplied by the same fountain at different points of its length, and the amount of ink supplied at any desired point in the length of the fountain roll can be increased or diminished at the will of the operator. The specification then directs attention to the fact that heretofore the screws controlling the scraper-blade of the ordinary type of inkfountains have been manipulated manually, and that in large presses the pressman has been compelled to climb to the different tiers of the press and sometimes to stop the press entirely to make the proper adjustments. The specification continues: My invention more specifically provides means whereby each fountain of a press, or any set of fountains, may be controlled from a central point or switch board, and the operator by simply pressing the proper buttons thereon can increase or diminish the supply of ink obtained from any given fountain, at any point or section in the length of the fountain roll. The controlling devices can be located at any convenient point, and in practice would be preferably located where the operator can observe the product of the press and can increase or diminish the supply of ink to any part of the width of the paper, or printed web, as he pleases, without having to leave the spot; and if the color on the web be too light or too heavy it can be increased or diminished practically instantly without the pressman having to leave his station or climb to upper decks of the press. The specification then points out that the advantage of such an electrically-controlled apparatus lies in the fact that the pressman may have the switchboard located near the folder, from which point all adjustments may be made. The first group of claims, including claim 2, was rejected because in the opinion of the Patent Office they are sufficiently broad to cover the adoption of a plurality of independent electric circuits and motors in connection with the machines of Goss and Spalckhaver, patents for which were granted in 1907 and 1910, respectively. These patents disclose ink-fountains in which manually-operated means are provided at the ends of the fountains for adjusting the individual screws. It is the view of the Patent Office that it was common practice to employ electric circuits and magnets to control mechanical motion, but it is strange, indeed, if this was so obvious, that Goss and Spalckhaver did not employ them instead of the less desirable devices they did use. However, we agree with the Patent Office that this group of |