of law the appellant has brought the cause here, thereby harassing the appellee and unnecessarily consuming our time. The Commissioner was right in awarding priority of invention to Storrie, and his decision is affirmed. Affirmed. [Court of Appeals of the District of Columbia.] IN RE KOHLER. Decided February 4, 1918. 249 O. G., 1223; 47 App. D. C., 373. 1. PATENTABILITY-JUDGMENT OF THE PATENT OFFICE TRIBUNALS. The concurrent judgment of the several tribunals of the Patent Office on the matter of patentable novelty "should not be overturned except where it is manifest that it rests on error." 2. SAME-SAME-RESOLVING DOUBTS. While in case of doubt on the point of invention it should be resolved in favor of the applicant, yet "we are not permitted to doubt where the Patent Office tribunals are unanimous and there is nothing tending to show clear error on their part." Mr. C. T. Milans for the appellant. Mr. T. A. Hostetler for the Commissioner of Patents. SMYTH, C. J.: Kohler asserts that he invented a sanitary bathtub with certain features disclosed in his claims of which there are eight. We give the first which is characteristic of the others: An enameled iron bathtub provided with an integral enameled flat rim approximately rectangular in shape with one or more of the edges of the rim continuing downwardly to a plane near the bottom of the tub to form an inclosure integral with the tub and adapting the integral rim of the tub to be tiled into the floor and walls of a room. All the tribunals of the Patent Office denied the patentability of the claims over the six references appearing on the record of the Patent Office. This placed a heavy burden on Kohler, for we have repeatedly held that where patentable novelty has been denied by all the expert tribunals of the Patent Office, it is incumbent upon one appealing therefrom to make out a clear case of error in order to obtain a reversal. (In re Beswick's appeal, C. D., 1900, 294; 91 O. G., 1436; 16 App. D. C., 345; see also in re Smith's appeal, C. D., 1899, 313; 87 O. G., 893; 14 App. D. C., 181; Seeberger v. Dodge, C. D., 1905, 603; 114 O. G., 2382; 24 App. D. C., 476. This is as it should be. The members of the different boards are specialists and their judgment should not be overturned except where it is manifest that it rests on error. This does not ignore the other Irule that where there is doubt it should be resolved in favor of the applicant. (In re Thomson, C. D., 1906, 566; 120 O. G., 2756; 26 App. D. C., 419.) We are not permitted to doubt where the Patent Office tribunals are unanimous and there is nothing tending to show clear error on their part. We have read the record carefully, and adopt this statement of the Assistant Commissioner: Bathtubs of similar construction, with the entire exposed surface enameled, are old, as shown in the patent to Clifford, No. 1,116,015, Nov. 3, 1914. Applicant contends that it is invention to do away with the joint between the skirt and the top of the tub and to make a continuous enameled surface. The patent to Stephenson, No. 1,020,324, March 12, 1912, however, shows a wash bowl in which there is a smooth, unbroken, enameled surface over the top edge and depending skirt, and it is suggested as the proper construction for a bathtub. The prior art therefore teaches the mechanic how to make the applicant's construction, and no invention is required. The decision of the Assistant Commissioner rejecting all the claims of the applicant is affirmed. Affirmed. [Court of Appeals of the District of Columbia.] LAUTENSCHLAGER v. GLASS. Decided March 4, 1918. 249 O. G., 1223; 47 App. D. C., 443. 1. INTERFERENCE-PRIORITY. Record reviewed and Held that priority was properly awarded to G. 2. SAME QUESTION OF PATENTABILITY NOT CONSIDERED BY COURT. The question whether the patent involved in the interference was rightfully issued may not be raised on appeal. Mr. F. J. V. Dakin for the appellant. ROBB, J.: This interference is between an application filed by Lautenschlager on August 11, 1914, and a patent granted Glass July 7, 1914, on an application filed October 31, 1913, which was a division of an application filed May 15, 1913. The invention relates to a method of folding the upper or inner edges of closed vamps and is expressed in five counts, of which the following, count 1, is sufficiently illustrative: 1. The method of finishing the edge of a vamp which consists in stitching the rear ends of the vamp together so that its upper edge will present an endless outline, cementing said edge for its entire length, and finally folding the edge in a step-by-step manner progressing from a given starting point entirely around said edge and back to the starting point. The Examiner of Interferences and the Examiners-in-Chief awarded priority to Glass and Lautenschlager practically abandoned his appeal before the Assistant Commissioner, for that official in his opinion states: Neither orally nor by brief has any attempt been made to show that the lower tribunals were in error in holding that Glass was entitled to the award of priority. No appeal was taken within the time set in the decision of the Examiners-in-Chief. The limit of appeal, however, was extended by the Commissioner in view of a petition brought in the companion interference No. 37,185. (Lautenschlager v. Glass, post, 162; 249 O. G., 1224; 47 App. D. C., 444.) The only purpose of taking the appeal seems to have been that an argument in the other interference might be based on the testimony in this interference. The Assistant Commissioner thereupon affirmed the prior decisions. In this court the sole question presented, according to the brief of counsel for appellant, is whether a prior application of Lautenschlager constitutes an anticipation of this invention; in other words, whether the patent was rightfully granted in view of the prior art. Such question, we have ruled, may not be raised here. (Slingluff v. Sweet, C. D., 1916, 224; 230 O. G., 659; 45 App. D. C., 302.) The decision is affirmed. Affirmed. [Court of Appeals of the District of Columbia.] LAUTENSCHLAGER v. GLASS. Decided March 4, 1918. 249 O. G., 1224; 47 App. D. C., 444. INTERFERENCE-PRIORITY-EDGE-FOLDING MACHINE. Where there is a unanimity of decisions in the Patent Office, Held that the burden is heavily upon the appellant to establish error. Mr. F. J. V. Dakin for the appellant. Mr. A. D. Salinger for the appellee. ROBB, J.: This is an appeal from concurrent decisions of the Patent Office tribunals awarding priority of invention to Glass. The issue is expressed in three counts, of which the following, count 1, is sufficiently illustrative: 1. A machine for folding the edges of sheet material having, in combination, edge turning and loop-forming means, a hammer, and an anvil having its face disposed obliquely to the body portion of the work. The earliest date claimed by Lautenschlager was March 21, 1913. Each of the three tribunals of the Patent Office has accorded Glass a prior date of conception and has found due diligence thereafter on his part. The question is purely one of fact and in such a case where, as here, there has been unanimity of decision in the Patent Office, the 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. 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. 66 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. |