ferences to Lister as to all the claims before him for consideration. This action was affirmed on appeal by the Examiners in Chief. The Assistant Commissioner reversed the Examiners in Chief as to claims 1 to 12, inclusive, but affirmed them as to claim 15. We have carefully examined the record and are clearly of the opinion that the Assistant Commissioner was right for the reasons given in his opinion (ante, 37; 253 O. G., 259). No useful purpose would be served either by repeating here the arguments employed by him or by stating additional ones. His decision is affirmed. Affirmed. [Court of Appeals of the District of Columbia.] HENGGI v. DALLMEYER. Decided May 27, 1918. 253 O. G., 514; 48 App. D. C., 141. 1. INTERFERENCE-PRIORITY. Record reviewed and Held to establish that Henggi was entitled to an award of priority. 2. SAME-SUFFICIENCY OF DISCLOSURE TO OTHERS. Held that ordinarily a disclosure to others to be sufficient must so describe the purported invention as to make its nature clear to persons competent to understand it. (Eastman v. Houston, C. D., 1901, 386; 95 O. G., 2064; 18 App. D. C., 135.) Mr. C. T. Milans for the appellant. Mr. R. D. Totten for the appellee. SMYTH, C. J.: The controversy in this case is in respect to which one of the parties originated the device of the issue, called in brief "wing-dies" for making "creep-checks" which are used to prevent railroad rails from moving along the tracks in the direction of the length of the rails. The Acting Examiner of Interferences awarded priority to Henggi. On appeal his decision was reversed by the Examiners in Chief, and their action was affirmed by the First Assistant Commissioner. All the transactions referred to herein occurred in 1913. Dallmeyer at the dates given was the secretary and treasurer of the Valley Forging Company and exercised a general management over the manufacturing operations of the company. Henggi, until a few days previous to the taking of the testimony, was employed by the same company as factory superintendent. Henggi claims conception and disclosure in June and reduction to practice in September, while Dallmeyer asserts that he conceived the invention October 5, disclosed it October 6, and reduced it to practice October 25. Dallmeyer is the junior party and therefore has the burden of proof. (Hunt v. McCaslin, C. D., 1897, 401; 79 O. G., 861; 10 App. D. C., 527; Smith v. Foley et al., C. D., 1908, 501; 136 O. G., 850; 31 App. D. C., 518.) He testified that his company having received an order for creep-checks, an article which had not been manufactured by it before, a certain method for making them was adopted, but this proved to be too slow and was soon rejected; that on Sunday, October 5, he conceived the invention of the issue, made drawings only part of which was offered in evidence, the other part-that which covered the main features of the device-having been lost, he said; that on Monday, October 6, he disclosed the invention to McVey, vice-president of his company, and to Henggi; and that immediately afterward he and Henggi prepared drawings of the dies. Testimony corroborating his statements is essential to his case. (Malcom v. Richards, ante, 171; 250 O. G., 1000; 47 App. D. C., 582; and cases there cited.) But he has failed to produce any. His wife testified that she saw him at work upon sketches, but she could give no description of them further than that they were for the purpose of reducing the cost of manufacturing creep-checks. McVey said that Dallmeyer stated on Monday, morning, October 6, that he had worked out a scheme which would reduce the operations on the creep-checks; that he had a small sketch which he wanted the witness to examine but that the latter only glanced at it and told him that he would look at it later. It does not appear that he did so. McVey also testified that at the same time Dallmeyer said he would go over to the shop and see what Mr. Henggi thought of it, referring to the sketch. This is all the corroborating testimony adduced by Dallmeyer and it falls very far short of answering the law's requirements. Ordinarily a disclosure to be sufficient must so describe the purported invention as to make its nature clear to persons competent to understand it, (Eastman v. Houston, C. D., 1901, 386; 95 O. G., 2064; 18 App. D. C., 135), it is manifest that the foregoing testimony does not establish any such disclosure by Dallmeyer. Henggi contends that he conceived the invention in June and made drawings some weeks later, fixing the date by the birth of his younger child; that sometime in August he disclosed the invention to Dallmeyer who rejected it because, as stated by him, it was too expensive; that Dallmeyer tried two methods for making the creepchecks but found them unsatisfactory, and then fell back on Henggi's idea. This, according to Henggi, was sometime in September, when, as he asserts, he made drawings, which have been offered in evidence and embody the issue. He also says that the dies were complete, and were operated, early in October, and that as a reward for his services in inventing them he was given a raise in salary by McVey about November 1. He denies disclosure of the invention by Dallmeyer to him. Henggi's wife and son testified that he was working on drawings in June for a tool or die which would bend both ends of a piece of metal at the same time. This is one of the things accomplished by the invention. Yute, a pressman, employed by the Valley Forging Company, upon whose press the first dies were installed, says that Henggi told him that he, Henggi, had disclosed to Dallmeyer a set of dies which would increase the speed of manufacturing the creep-checks, but that Dallmeyer rejected them as too expensive. He describes the dies by calling them wing-dies, which appears to reveal only two of the distinguishing features of the invention. Jones, another machinist in the employ of the same company, testifies to the same effect as Yute. They also support Henggi with respect to other things touching which he and Dallmeyer differ; e. g., Henggi says there were two experiments made before the wing-dies were adopted, and Dallmeyer says there was but one, while Yute and Jones agree with Henggi. Yute also said that the wing-dies, without the "kicker," an important but not an indispensable part, were tried out by him just before September 30, the date of his marriage, and that when he returned from his wedding tour about two weeks later the dies were complete. If this be true, then the greater part of the device was manufactured and in a condition to be tried out before Dallmeyer thought of it. Yute and Jones were in a position to know the facts. about which they testified. They are still in the employ of the Forging Company, and this circumstance gives added weight to their testimony in favor of Henggi. McVey admits that Henggi's salary was increased at the time mentioned by the latter, but does not admit that it was done on account of the success of the invention. With regard to that McVey says he gave both Dallmeyer and Henggi credit for the device. Dallmeyer also admits the raise in Henggi's salary. We have thus given the testimony in outline. A more detailed analysis of it might be made but we deem it unnecessary in view of the exhaustive opinion of the Acting Examiner of Interferences whose conclusions we adopt. It is true that the corroborating testimony of neither party concerning conception and disclosure is as complete as it might be, but the position of Dallmeyer in this respect is worse than that of his opponent, and as the burden is on him he cannot prevail over Henggi. Therefore the decision of the Commissioner is reversed and priority of invention of the subject-matter of the interference is awarded to Henggi, the senior party. Reversed. [Court of Appeals of the District of Columbia.] IN RE MCNEAL. Decided April 1, 1918, 253 O. G., 955; 47 App. D. C., 600. PATENTABILITY-SAND-DISINTEGRATOR. The appealed claim for a sand-disintegrator compared with the cited art and Held to be unpatentable thereover. Mr. Edwin C. Crawford and Mr. Percy H. Moore for the appellant. Mr. T. A. Hostetler for the Commissioner of Patents. VAN ORSDEL, J.: This appeal is from the decision of the Commissioner of Patents rejecting the following claim: 1. In a disintegrator for sand, the combination of the hopper, two rollers secured in the frame work of the hopper, shafts upon which said rollers are mounted journaled in such frame work, two sprocket wheels different in diameter, mounted on said shafts, and a sprocket chain connecting said sprocket wheels, the hopper in which said shafts are journaled, and the belt connecting one of the shafts with the operating machinery of an engine, substantially as and for the purpose specified. Two references are cited-one a German patent (88,171) to one Gomez, and the other a patent (1,000,913) to one Hovendick. The elements of the claim are present in the Hovendick device. The claim, it will be observed, does not specify that the rollers revolve in the same direction, but, in his specification, appellant describes the rollers as "revolving in the same direction but at different velocities." The rollers in Hovendick's device revolve in opposite directions; but it was held, and properly so, that it did not involve invention to so arrange the sprocket-chain as to revolve the rollers in the same direction at different velocities. Indeed, the patent to Gomez was inserted to demonstrate the old expedient of so arranging the sprocket-chain as to drive the rollers in the same direction. The decision of the Commissioner of Patents is affirmed, and the clerk is directed to certify these proceedings as by law required. Affirmed. [Court of Appeals of the District of Columbia.] WILLIAMS v. JOHN B. A. KERN & SONS. Decided March 4, 1918. 254 O. G., 866; 47 App. D. C., 441. 1. TRADE-MARKS-SIMILARITY OF GOODS. Self-raising pancake-flour and cornmeal Held to be goods of the same descriptive properties as flour. 2. SAME-SAME-TEST. The test is not whether a user would make the mistake of using the pancake-flour or the meal for the wheat-flour, but whether he would be likely to purchase the product of one manufacturer believing it to have been manufactured by another. Mr. J. R. Edson and Mr. Thomas G. Stewart for the appellant. Mr. W. G. Henderson for the appellees. VAN ORSDEL, J.: This is a trade-mark opposition. It appears that appellant applied for registration of the word "Success" as a trade-mark for self-raising pancake-flour and cornmeal. Appellees opposed the registration on the ground that they and their predecessors have continuously, since 1873, used the word "Success" as a trade-mark for flour. They first registered the mark in 1902, and reregistered it in 1915. From the decision of the Commissioner of Patents sustaining the opposition and denying appellant right to registration this appeal was taken. The single question involved is whether the goods of the respective parties possess the same descriptive properties, and the use of appellees' trade-mark by appellant would be likely to create confusion in trade by leading purchasers to believe that appellant's goods were manufactured by appellees. It is on this ground that appellees urge they would sustain damage. The goods of the respective parties belong to the general classification of flour, and are common in their source of manufacture. Each is a product of the milling business. Each can be readily associated with the product of one engaged in the milling business. The test is not whether a user would make the improbable mistake of using appellant's pancake-flour for appellees' wheat-flour, but whether a purchaser would be likely to purchase appellant's product believing it had been manufactured by appellees. The test here is not in the likelihood of confusing the products, but the source from which they come. The distinction is clearly stated in American Stove Co. v. Detroit Stove Works, (C. D., 1908, 407; 134 O. G., 2245; 31 App. D. C., 304) where the word "Jewel" as a trade-mark for gasolené or vapor stoves was involved. The word had been registered by the Detroit company as a trademark for coal and wood stoves. It was contended by the American Stove Company that there was a fundamental difference between vapor or gasolene stoves and coal or wood stoves and that there could be no possible room for confusion, in that no one could mistake a gasolene-stove for a coal or wood stove. On this point the court said: Gasolene or vapor stoves are used for the same purpose as coal and wood stoves and belong to the same genus. The structural differences existing between them are largely due to the character of the fuel used. We agree with |