The goods of the parties are household utilities. They are adapted to be connected to the electric-light circuit, and are thermostatically controlled. They are not similar, however, in any other respect. They differ greatly in cost, use, appearance, and structure, and, of course, are not competitive. Were it not for the fact that they are thermostatically controlled, we dare say that no one would contend that sadirons possess the same descriptive properties as either fuel-burning devices or refrigerators. In the case at bar the labels carrying the respective marks of the parties were introduced in evidence, and appellant contends that such labels tend to show confusing similarity of the marks. We have examined said labels. The "Crisco" labels are blue and white; the "Cresco" labels are orange and black. Without detailing the other differences and similarities between the labels, we are of opinion that they do not support appellant's contention last above stated. There is no evidence of actual confusion with respect to the marks, nor is there evidence that the goods of the respective parties are generally sold in the same stores, although a witness for appellee did testify that products bearing the mark "Cresco" were sometimes sold to general stores in small towns that sell groceries and have filling stations connected with the stores, and appellant's testimony establishes that its products, bearing the mark "Crisco," were sold to groceries and general stores selling groceries, throughout the United States. It is our opinion that, following our decision in the case of Williams Oil-O-Matic Heating Corp. v. Westinghouse Electric & Mfg. Co., supra, the goods to which the respective marks here in issue are applied are not goods of the "same descriptive properties" within the meaning of that term as used in said section 5 of said trademark act. Appellant relies largely upon the case of Imperial Cotto Sales Co. v. N. K. Fairbanks Co., 50 App. D. C. 250, 270 Fed. 686, wherein an application by the appellant there for the registration of the mark "Cottolene," applied to cotton seed meal to be used in feeding livestock, was refused upon the opposition of the appellee there, who was the owner of a registration of the same mark, "Cottolene," applied to a cooking fat made from cotton seed oil and "oleostearine." Both of the products there involved had in part precisely the same cotton seed origin, and this origin was strongly indicated by the nature of the mark there in issue. Neither of these facts is present in the case at bar, and therefore the case last above cited is not, in our opinion, an authority upon the question here before us. It is therefore unnecessary for us to comment further upon said cited case. In the decision appealed from the commissioner cited the case of The Pure Oil Co. v. Vegetable Oil Products Co., 156 MsD 138. 115363-37--10 where registration was permitted of the mark "Purola " for use in connection with a lard substitute, which mark was identical with opposer's mark used on lubricating oils and greases. It is to be noted that the issue involved in said cited case was substantially identical with the issue here involved. In his decision in the case at bar the commissioner quoted from the decision in the Purola case as follows: It is deemed the commercial activities of the respective parties are so dis similar as to the nature of the goods, the class of purchasers, and the uses for which the goods are intended that there is no probability of conflict or confusion in trade. The goods here under consideration clearly enough do not possess the same descriptive properties nor do they belong in the same class. We think said quoted language is applicable to the facts in the case at bar, and we find nothing in the record to warrant a reversal of the decision here on appeal. The decision of the Commissioner of Patents is affirmed. 464 O. G. 713; 23 C. C. P. A. 794; 79 F. (2d) 903 IN RE LINDBERG (No. 3555) PATENTS-PATENTABILITY—ANTICIPATION. Claims before the court held not patentable in view of the prior art. United States Court of Customs and Patent Appeals, December 2, [Affirmed.] 1935 APPEAL from Patent Office, Serial No. 482992 James A. Carr and Joseph J. Gravely for appellant. R. F. Whitehead (Howard S. Miller of counsel) for the Commissioner of Patents. [Oral argument November 4, 1935, by Mr. Gravely and Mr. Miller] Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associated Judges LENROOT, Judge, delivered the opinion of the court: The Board of Appeals of the United States Patent Office affirmed a decision of the examiner rejecting claims 5, 6, 7, 9 and 11 of appellant's application for lack of invention in view of the prior art. So far as appears from the record, no claims were allowed. From said decision of the Board of Appeals appellant took this appeal. Claims 5, 6 and 7 are apparatus claims, and 9 and 11 are process claims. Claims 5, 7 and 9 are illustrative and read as follows: 5. A hot bar rolling mill comprising two sets of finishing rolls having their passes of substantially the same shape and in direct alignment, the second set of rolls being located in close proximity to the first set of rolls, the axes of rotation of the second set being disposed at an angle of substantially ninety degrees with relation to the axes of the first set of rolls, and the pass of the second set being slightly smaller than the pass of the first set of rolls. 7. A hot bar rolling mill comprising two sets of finishing rolls located in close proximity to each other, the axes of rotation of the second set being disposed at an angle of substantially ninety degrees with relation to the axes of the first set of rolls, the pass of the second set being of substantially the same size and shape as the pass of the first set of rolls, adjusting means for adjusting the size of the pass of the first set of rolls and comparatively finer adjusting means for accurately adjusting the size of the pass of the second set of rolls. 9. The process of rolling hot bars and the like which consists in passing the work through work reducing rolls and then through two sets of finishing rolls located in close proximity to each other and having substantially the same shape of pass, the axes of the rolls of said first set being at an angle of ninety degrees to those of the second set and the second set of rolls being adjusted in such manner that the size of pass is the exact size of the finished bar and the first set of rolls having a slightly larger size of pass. The references relied upon by the Patent Office Tribunals are: Daniels, 271,225, January 30, 1883. Appellant's application relates to rolling mills for, and process of, rolling hot bars. The alleged novel character of the mill disclosed by appellant is the closely proximate arrangement of two sets of finishing rolls, the rolls of one set being disposed at substantially right angles to the rolls of the other set, and the pass of the second set being slightly smaller than the pass of the first set. A further feature embraced in claim 7 is the provision of a finer adjusting means for the second set of rolls than for the first set. The patent to Daniels relates to rolling metal rods and bars, and discloses a series of sets of reducing rolls and sets of auxiliary rolls. In one of the figures of the drawings the rolls of each set are disposed at right angles to the rolls of the adjacent set or sets. The principal object of the patentee was to press into the rod or bar the fins near the ends thereof which were produced in the reducing rolls, and that object, the patentee states, is accomplished by the use of said auxiliary rolls. However, the specification states that: [the] auxiliary rolls are effective to act upon the finned or distcrted portions of the rod, serving to correct distortions, to reduce the fins, and to maintain uniformity of size throughout the length of the rod, by subjecting it, or the distorted portions thereof, to a duplex or second rolling action without a material change in the size of sectional area of the body of the rod as it passes said auxiliary rolls. [Italics ours.] The specification also states: Another advantage is that by avoiding the formation of fins it is practicable to roll the rods to a smaller size, and thus save time and labor heretofore required in the subsequent operations of reduction by cold-drawing through dies. The patent to Edwards relates to a rolling mill for polishing round bars, and discloses sets of rolls placed at right angles to each other, means being provided for adjusting the size of the pass between the rolis. The examiner seems to have rejected all of the claims upon both references, and also rejected claims 9 to 11 upon the additional ground that the process claims merely recite the function of the machine and are therefore improper. In the examiner's statement upon appeal he apparently relied upon the Edwards reference only in connection with the Daniels reference. for the rejection of claim 7. The Board of Appeals specifically relied upon the Daniels patent for the rejection of claims 5, 6, 9 and 11, and upon Daniels in view of Edwards for the rejection of claim 7. Further, with respect to claims 9 and 11, the board stated: Claims 9 and 11 have been further rejected as being for the mere function of the machine. It is believed the process recited in these claims is substantially disclosed in Daniels and that any attempted distinction thereover resides in apparatus features which have been included in detail in the claims. We find no error in the decision of the Board of Appeals. It appears to us that the Daniels patent is a complete anticipation of claims 5, 6, 9 and 11. His auxiliary rolls, in one of the figures of the drawings, are placed at right angles to his last set of reducing rolls, and we think they would perform the same functions as appellant's rolls for which he claims invention. It is true that Daniels had principally in mind, as appears from the patent, compressing the fins or projections formed at the ends of the rods in the process of rolling, but it is evident to us that his auxiliary rolls would operate throughout the entire length of the rod in the same manner as appellant's last set of finishing rolls. Appellant attempts to distinguish between his last set of finishing rolls and the auxiliary rolls of Daniels in the fact that Daniels states that his auxiliary rolls are "provided with grooves that in size substantially correspond in sectional area with the grooves in their preceding pair of rod-reducing rolls," while appellant's specification and claims provide that the pass of the second set of finishing rolls is slightly smaller than the pass of the first set of rolls. Upon this point the Board of Appeals stated, with respect to the Daniels patent, as follows: * The auxiliary rolls are provided for the purpose of pressing into the rod or bar the fins which have been produced in the reducing rolls. The passes between a set of reducing rolls and the succeeding set set of auxiliary rolls are practically of the same sectional area but it is deemed obvious to make the pass through the auxiliary rolls slightly smaller than that through the preceding reducing rolls since the auxiliary rolls are intended to grip the rod and to be driven at a slight excess of speed to prevent sagging between the two sets of rolls. The examiner upon this point stated: Daniels states that the finishing passes are substantially the same size and shape. Obviously the last pass would necessarily be smaller than the preceding one to feed the material and properly roll down the fin. We are in accord with the views expressed in the foregoing quotations, and are of the opinion that the element of the claims respecting the slightly smaller pass in appellant's second set of rolls does not lend patentability to the claims. It will be noted that claim 7 contains the additional element of "adjusting means for adjusting the size of the pass of the first set of rolls and comparatively finer adjusting means for accurately adjusting the size of the pass of the second set of rolls." This claim was rejected as being unpatentable over Daniels in view of the patent to Edwards, showing that it is old to provide means for adjusting the size of the pass between the rolls of each set. We agree with the board that no invention is involved in using adjusting means of a sufficient degree of fineness to obtain the desired adjustment. In the case of In re Brandt, 20 C. C. P. A. (Patents) 1005, 64 F. (2d) 693, we said: Adjustability is usually not a patentable subject matter unless the adjustability is made in a new and improved way. No particular character of adjusting means is shown or claimed by appellant. Further, with respect to the process claims, 9 and 11, we think they merely recite the obvious function of the apparatus claimed, and we are further of the opinion that the processes claimed are substantially disclosed by the Daniels patent. For the reasons stated, the decision of the Board of Appeals is affirmed. 464 O. G. 237; 23 C. C. P. A. 797; 79 F. (2d) 892 UFER AND NIEMANN v. WILLIAMS (No. 3512) 1. PATENTS-INTERFERENCE-PATENTABILITY. This court, under the well established rule, may not consider the patenta bility of the counts of the issue to either party. 2. PATENTS-INTERFERENCE REDUCTION TO PRACTICE. It is clear from the record that both parties meant to convey to their respective specifications the idea that, in the process, the addition of the sub |