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LACHES-Continued.

period specified by statute. Whatever, therefore, be taken as the period limiting an applicant's right to copy claims from a patent, he must be granted the right to explain the delay beyond that period. Wintroath v. Chapman and Chapman, 9.

2. SAME SAME-SAME-PRACTICE.-Where an applicant who copies claims from a patent is chargeable with laches in presenting them, the interference should be declared only where a prima facie case overcoming the charge of dilatoriness is made out. Such a showing would be open to attack inter partes. Id.

LAW EXAMINERS. See Cancelation of Claims, 2.

LICENSES. See Government Use of Patented Inventions; Infringement, 1. LIMIT OF TIME. See Abandonment of Applications, 2; Anticipation, 1; Court of Appeals of the District of Columbia, 2; Double Patenting; Laches, 1.

LIMITATION OF CLAIMS. See Claims, 5; Construction of Claims, 2, 3, 5, 6, 7; Construction of Specifications and Patents, 1, 5; Delay in Applying for Reissue, 3; Interference, 3; Particular Patents, 5, 20.

LIMITATION OF PATENT.

SCOPE PRIOR ART.-A patent the application for which was filed prior to that for the patent in suit is prima facie a part of the prior art and may be considered in the limitations it imposes on the scope of the patent in suit. Jackson Cushion Spring Co. v. Adler, 218.

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MACHINES. See Priority of Invention, 9, 10.

MANDAMUS.

1. DECLARING OF AN INTERFERENCE CANNOT BE CONTROLLED BY.-It is well settled that the duty imposed upon the Commissioner of Patents by section 4904, Revised Statutes, (Comp. Stat., 1916, sec. 9449,) to declare an interference involves the exercise of his judgment upon the facts presented and cannot be controlled by mandamus. (Ewing v. United States, C. D., 1917, 409; 238 O. G., 983; 244 U. S., 1; 37 Sup. Ct. Rep., 494.) *United States, ex rel. International Money Machine Company, v. Newton, 211.

2. QUESTION OF RES ADJUDICATA NOT REVIEWED ON.-Where an interference had been dissolved and a subsequent interference was declared between the same applications, Held that the question whether the decision in the original interference is res adjudicata as to the second interference cannot be raised on a petition for mandamus. It may be urged before the various tribunals of the Patent Office and on appeal to the Court of Appeals of the District of Columbia. (Gold v. Gold, C. D., 1910, 269; 150 O. G., 570; 34 App. D. C., 229.) * Id. 3. DOES NOT LIE WHERE NO LEGAL INJURY IS SHOWN.-Where after a number of motions and appeals in an interference in which the relator was involved a decision on priority adverse to certain parties was entered and thereafter the Commissioner dissolved the interference as to these parties, Held that mandamus would not issue to compel him to set aside his action and proceed to a judgment of priority, since the relator had sustained no legal personal injury by such action. * United States of America, ex rel. Johnson, v. Ewing, Commissioner of Patents, 93.

4. DISCRETIONARY ACTION OF THE COMMISSIONER NOT CONTROLLED BY.— Where after a judgment of priority had been entered in an interference the Commissioner vacated that order and dissolved the interference as to certain of the parties, Held that his action involved the exercise

MANDAMUS-Continued.

of judgment and discretion and cannot be controlled by mandamus. a Id.

5. WHEN ISSUED." The writ of mandamus can never be issued to an administrative officer unless he is refusing to perform a positive ministerial duty. It cannot be made to serve the purpose of an appeal from a decision which he has made, nor can it be made the basis of a proceeding in any manner to review a legal act of judgment or discretion on his part which he has performed. If the act which the official has done is within the jurisdiction constitutionally confided to him by the Congress, the mere fact that what he has done is at variance with the views of one side or another to the controversy does not give to a court the power to direct him by the writ of mandamus to undo what he has done and proceed to act in a different manner." Briggs v. Commissioner of Patents, 99.

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6. DISCRETIONARY ACTION OF THE COMMISSIONER OF PATENTS NOT CONTROLLABLE THEREBY.-While mandamus may be invoked to compel a court or officer to take cognizance of a case in which the jurisdiction of the subject-matter has been conferred by law, it will not lie to control the judgment or discretion of such a tribunal. *Briggs v. Commissioner of Patents, 215.

7. REDECLARATION OF AN INTERFERENCE.-DISCRETIONARY ACTION.-Where it was sought by mandamus to compel the Commissioner of Patents to reopen an interference, Held that the relief sought was not to require the Commissioner to do a mere ministerial act which the law requires him to perform, but to decide in a particular way a matter confided by law to his discretion and judgment. *Id.

MECHANICAL PATENTS. See Designs; Double Patenting.

MECHANICAL SKILL. See Commercial Success; Invention, 1, 2, 3, 6; Particular Patents, 9.

MERITS. See Construction of Specifications and Patents, 2; Suits for Infringement, 3; Suits Under Section 4915, Revised Statutes, 2.

METHOD. See Particular Patents, 17.

METHOD OF APPLYING TRADE-MARKS. See Trade-Mark Use, 1.

MILITARY OR NAVAL SERVICE. See Practice Before the Patent Office, 3. MODEL. See Preliminary Statement.

MODIFYING CLAUSE. See Construction of Claims, 6.

MONOPOLY. See Contracts, 1, 2; Registration of Trade-Marks, 10, 16; TradeSecrets.

MOTION TO DISSOLVE INTERFERENCE. See Jurisdiction of the Court of Appeals of the District of Columbia, 3.

NAME OF APPLICANT. See Registration of Trade-Marks, 20.

1. FULL NAME.-Where the applicant's first name as signed to the paper is known as a Christian name, an affidavit that the name as given is his full name should not be required even though it is also an abbreviation. Ex parte Bowen, 1.

2. "FRED" FULL CHRISTIAN NAME-NO AFFIDAVIT NECESSARY.-As "Fred" is a Christian name, the decision in ex parte Smith and Kimble (C. D., 1901, 231; 97 O. G., 2533) is overruled in so far as it held that an affidavit should be required when the papers are signed "Fred." Id.

NEW MATTER. See Amendment of Applications, 2, 3.

NEW RESULTS. See Invention, 4; Particular Patents, 8; Suits Under Section

4915, Revised Statutes.

NEW USE. See Invention, 4.

OATHS.

IN ENEMY COUNTRIES-POWER TO ADMINISTER AND PROVE AUTHORITY.-Held that the Spanish diplomatic and consular officers in charge of the interests of the United States in enemy countries are not vested with power to administer oaths or to prove the authority of officials of the enemy countries under section 4892, Revised Statutes. Opinion of the Solicitor of the Interior, 87.

OLD DEVICES. See Invention, 4; Particular Patents, 8; Suits Under Section 4915, Revised Statutes, 1, 2.

OPPOSITION TO REGISTRATION OF TRADE-MARKS.

Trade-Marks, 3, 4; Trade-Mark Interference.

See Similarity of

1. TRADE-MARKS-PATENT OFFICE TRIBUNALS.-Court refused to consider evidence of registration that was not offered in evidence and brought to the attention of the Patent Office tribunals. *Borden's Condensed Milk Company v. Eagle Manufacturing Company, 133.

2. SUSPENSION OF PROCEEDINGS INTERFERENCE.-Where an opposition involves the same parties and the same marks and goods that are involved in an interference proceeding, Held that the opposition should be suspended until the interference is terminated, since in the interference the Patent Office has more liberty of action than in the opposition proceeding. Royal Embroidery Works, Naday and Fleischer, v. E. & Z. Van Raalte, 57.

3. EQUITY PRACTICE FOLLOWED RIGHT OF OPPOSER TO WITHDRAW OPPOSITION. The practice in opposition proceedings should follow the equity practice rather than the practice in patent interferences, and an opposer may withdraw his opposition unless it is shown that the applicant has been damaged by reason of the opposition having been filed. (Cravenette Co. v. Rogers & Thompson, 102 MS. Dec., 127, overruled.) Standard Oil Company v. Crew Levick Company, 67. PARTICULAR PATENTS. See Construction of Specifications and Patents; Interference, 4; Specifications.

1. ADLER AND SULLIVAN-No. 991,187-SPRING-CUSHION FOR AUTOMOBILESVALIDITY AND INFRINGEMENT.-The Adler and Sullivan patent, No. 991,187, for a spring-cushion for the seats and backs of automobiles, conceding its validity is of narrow scope, its range of equivalents small, and its practical utility doubtful, and, as so construed, Held not infringed. Jackson Cushion Spring Co. v. Adler, 218.

2. BAYLEY-No. 49,593-DESIGN-ELECTRIC-LIGHTING FIXTURE-VALIDITY— ANTICIPATION.-Design patent No. 49,593, for an ornamental electriclighting fixture comprising a bell-shaped canopy having a straight lower edge, below which is suspended in close proximity a hemispherical bowl having a straight upper edge, Held invalid for lack of invention. Bayley & Sons, Inc., v. Standart Art Glass Co. et al., 258. 3. BLOCK-No. 1,061,353-ARCH-SUPPORT-INFRINGEMENT.-The Block patent, No. 1,061,353, for an arch-support, claims 1 and 4, which present the combination of an insole member, an insertion, and self-contained means carried by the insole member and insertion, whereby the insertion may be detachably secured at predetermined points, Held not infringed. Wonder Mfg. Co. v. Block et al., 276.

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4. SAME No. 1,127,349-SUPPORT OF ARCH OF FOOT-VALIDITY—ANTICIPATION. The Block patent, No. 1,127,349, for the support of the anterfor metatarsal arch of the foot, Held, in view of the prior art, to have been anticipated and not to show invention, as to claim 1, for

PARTICULAR PATENTS-Continued.

a flexible insole having a portion located beneath the anterior metatarsal arch of the foot of the wearer and means for adjusting the thickness of the insole at one or more points along the line of such arch. Id.

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5. SAME-SAME-SAME-INFRINGEMENT-SCOPE.-Block patent, No. 1,127,349, claim No. 2 Held limited by the language of the claim, and, as limited, not infringed. Id.

6. BROOKE No. 723,983-APPARATUS FOR CUTTING AND DISTRIBUTING MOLTEN MATERIAL-VALIDITY AND INFRINGEMENT.-The Brooke patent, No. 723,983, for an apparatus for cutting and distributing molten materials, which automatically cuts an uninterrupted flow of molten glass into a mold when the mold is filled and supports the severed stream until another mold is brought into place, was not anticipated, discloses patentable invention of a highly-meritorious character, and is valid; also Held infringed. Schram Glass Mfg. Co. v. Homer

Brooke Glass Co., 269.

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7. BURCHENAL-No. 1,135,351-HYDROGENATION OF OIL-PATENTABILITY.— The patent to Burchenal, No. 1,135,351, relating to hydrogenation of oil, claims 1 and 2 Held unpatentable in view of the prior art, and, if properly construed, not infringed. Proctor & Gamble Company v. Berlin Mills Company, 107.

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8. CLARKE No. 1,035,819-UNION-SUIT-VALIDITY AND INFRINGEMENT.-The Clarke patent, No. 1,035,819, for an improvement in knit underwear of the type known as "union-suits," while not covering a broad invention by the use of a new material in a new way, produced new results in such garments of a useful character, measured by the increased comfort they afford the wearer and the popular demand they created, and discloses patentable invention; also Held infringed. 4 Globe Knitting Works v. Segal et al., 254.

9. HORNBY-No. 1,079,245-PERFORATED PLATE-ANTICIPATION-" MECHANICAL SKILL."-Hornby patent, No. 1,079,245, for rectangular plates and so-called "sectors" for use in connection with mechanical building toys, consisting of many strips with slotted holes, which could be united to form ingenious devices, as limited by the prior art, Held not to show "invention," disclosing only "mechanical skill." Wagner v. Meccano Limited, 231.

10. KUCH-No. 1,090,992-LAMP-EFFECT OF INTERFERENCE.-The Kuch patent, No. 1,090,992, for a mercury-vapor lamp, Held not invalidated by interference proceedings with Bastian in the Patent Office, in which priority was awarded to Bastian as to certain claims then included in Kuch's application, but not as to the claims finally allowed. * General Electric Co. v. Cooper Hewitt Electric Co., 261. 11. LUELLEN-No. 1,032,557-PAPER CUP.-The Luellen patent, No. 1,032,557, for a paper cup, Held void for lack of invention. Individual Drinking Cup Co. et al. v. Public Service Cup Co., 303.

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12. SAME-No. 1,081,508-DISPENSING APPARATUS FOR PAPER CUPS-VALIDITY AND INFRINGEMENT.-The Luellen patent, No. 1,081,508, for a dispensing apparatus for paper cups, claims 18, 26, 34, 41, 48, and 49 Held valid and infringed by a vending-machine for cups, but not infringed by a free dispenser. Claim 16 also Held valid, but not infringed. Id.

PARTICULAR PATENTS-Continued.

13. MACBETH-NO. 13,766-REISSUE-PROCESS FOR MAKING GLASS-VALIDITY. The Macbeth reissue patent, No. 13,766, (original No. 1,097,600,) for a formula and process for making glass, Held void for abandonment. Macbeth-Evans Glass Co. v. General Electric Co., 239.

14. PHILLIPS-No.

950,402-GEARING FOR

WASHING-MACHINES-PATENTABILITY.-The Phillips patent, No. 950,402, for a gearing device especially adapted to the operation by power of washing-machines and wringers, by means of which the washing parts and the wringer may, when desired, be operated at the same time by the same powershaft, Held void as merely an aggregation of old elements. **Grinnell Washing Machine Company v. E. E. Johnson Company, 363. 15. PLYM-No. 852,450-STORE-FRONT CONSTRUCTION-VALIDITY

AND IN

FRINGEMENT.-Patent No. 852,450, for store-front construction, Held valid and infringed. Detroit Showcase Company v. Kawneer Mfg. Co., 281.

16. SAME No. 860,150-STORE-FRONT CONSTRUCTION.-The Plym patent, No. 860,150, relating not only to store-front but to show-case construction and designed to provide a simple, strong, durable, inexpensive, and ornamental connection between glass plates, Held not infringed. a Id.

17. RUUD-No. 853,738-STORAGE HOT-WATER HEATER SYSTEM-VALIDITY— INVENTION.

The Ruud patent, No. 853,738, for a storage hot-water heater system, which provided a new method of utilizing the action of the thermostat to turn on and off the supply of fuel, Held to show invention and not to have been anticipated. Ruud Mfg. Co. v. Long-Landreth-Schneider Co. et al., 295.

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18. SCHADE No. 819,461-LOOSE-LEAF BINDER-INVENTION.-The

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patent, No. 819,461, for a loose-leaf binder, in view of the prior art is void for lack of invention. Lemley v. Dobson-Evans Co., 224. 19. SPENGLER No. 1,074,907-BOTTLE-CLOSING CAP.-The Spengler patent, No. 1,074,907, for a bottle-closing cap comprising a resilient disk, which utilized the buckling property of metals to produce a tight closure, Held valid and not anticipated by the earlier Clay patents. United States Metal Cap & Seal Co. v. American Keyless Kap Corporation et al., 291.

20. STENZ-No. 1,047,849-SAMPLE-CARDS-INFRINGEMENT.-The Stenz patent, No. 1,047,849, for sample-cards on which were embossed a replica in paper of the cloth advertised, Held limited to the process of embossing or striking up portions of cardboard, and, as limited, not infringed. Simplex Lithograph Co. v. Renfrew Mfg. Co. et al., 289.

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PARTNERSHIP. See Abandonment of Trade-Mark Registrations. PATENT AND APPLICATION. See Interference, 12; Priority of Invention, 14, 15, 16.

PATENT LAW. See Contracts, 1, 3; Patentability, 4; Trade-Secrets. PATENTABILITY. See Claims, 2; Commercial Success; Construction of

Claims, 1, 2, 3, 8; Construction of Specifications and Patents, 3, 4; Designs, 2, 3; Grant of Patent; Infringement, 3; Invention; Jurisdiction of the Court of Appeals of the District of Columbia, 1; Particular Patents, 2, 6, 7, 8, 14; Suits Under Section 4915, Revised Statutes; Tribunals of the Patent Office.

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