U. S., 514; McLean v. Fleming, C. D., 1878, 262, 13 O. G., 913; 96 U. S., 245.) The decision of the Examiner of Interferences is affirmed, and priority of adoption and use of the mark in issue is awarded to John T. Lewis & Bros. Company. LUKASZEWSKE v. Cole. PATENT INTERFERENCE. Decided May 16, 1908. 134 O. G., 1050. INTERFERENCE-PRELIMINARY STATEMENT-EXTENDING TIME for Filing. The question of the extension of times for filing preliminary statements will be left wholly within the discretion of the Examiner of Interferences, and no appeal will lie from his decision thereon. ON PETITION. METAL JOINT. Mr. Charles F. Dane for Lukaszewske. MOORE, Commissioner: This is a petition by the Eloc Company, assignees of the party Cole, that I review the decision of the Examiner of Interferences denying the motion in behalf of Cole to postpone the date of filing the preliminary statement for a period of forty days. It is well settled that the question of the extension of times for filing preliminary statements is left wholly within the discretion of the Examiner of Interferences and that from his decision upon these matters no appeal will lie. (Ohmer v. Neth and Tamplin, C. D., 1905, 412; 118 O. G., 1686.) It is sought, however, by the present petition to obtain a review of the Examiner's decision upon this question. The circumstances of the case are not such as warrant the exercise of the supervisory authority of the Commissioner to review the decision of the Examiner of Interferences. Cole is the senior party, and a record judgment cannot, therefore, be rendered against him. Furthermore, as pointed out by the Examiner of Interferences: An amended statement is always admissible where it is shown to be necessary to the determination of the case in accordance with the facts, if it is also shown that the data of the amended statement could not have been earlier obtained. It is therefore apparent that no irremediable injury can be done to Cole's assignee by the denial of the motion brought on his behalf. The petition is dismissed. HOPKINS V. PETERS v. DEMENT. PATENT INTERFERENCE. Decided May 14, 1908. 134 O. G., 1050. 1. INTERFERENCE-PRELIMINARY STATEMENT-FAILURE TO OVERCOME THE FILING DATE OF SENIOR PARTY-ORDER TO SHOW CAUSE. In cases where the junior party to an interference alleges in his preliminary statement a date of conception prior to the senior party's filing date, but the other dates alleged are subsequent thereto, the Examiner of Interferences should issue an order to show cause why judgment on the record should not be rendered against such junior party, as experience shows it is rarely, if ever, that conception is proven by means other than disclosure. 2. SAME-SAME-SAME. If in response to the order to show cause such junior party or his attorney shall file an affidavit stating that it is proposed to establish conception by means other than disclosure, the Examiner of Interferences should not render judgment, but should set times for taking testimony. APPEAL ON MOTION. ADDING-MACHINE. Messrs. Bakewell & Cornwall for Hopkins. BILLINGS, Assistant Commissioner: This case comes up on an appeal by Peters from a decision of the Examiner of Interferences of March 25, 1908, denying his motion to vacate an order issued August 16, 1907, for Peters to show cause why judgment on the record should not be issued against him and on a motion by Hopkins to dismiss Peters's appeal. It appears that when the preliminary statements were opened it was found that Peters had alleged a date of conception prior to the filing date of Dement, the senior party, but that the dates of disclosure, making of drawings, and reduction to practice alleged were subsequent to Dement's filing date. The Examiner of Interferences thereupon, on August 16, 1907, ordered Peters to show cause on or before September 16, 1907, why judgment should not be rendered against him, and this time was extended to October 16, 1907. On October 15, 1907, Peters filed a motion to dissolve the interference and a motion to vacate the order of August 16, 1907. The motion to dissolve was transmitted to the Primary Examiner, and action on the motion to vacate was suspended pending the final determination of the former motion. On March 25, 1908, the motion to dissolve hav ing been finally decided, the Examiner of Interferences denied the motion to vacate and on the same day rendered a judgment that Peters was not the first inventor of the invention in issue. He set no limit of appeal from the decision on the motion and set April 14, 1908, as the limit of appeal from the judgment. On March 30, 1908, a limit of appeal was set from that motion, and the running of the times for appeal from the judgment was suspended pending the final determination of the motion. The motion to vacate was based on the ground that under the rules and the decisions the Examiner of Interferences had no authority to issue the order to show cause, since Peters had alleged a date of conception prior to Dement's filing date, and it is conceivable that he might establish such conception by means other than disclosure. The Examiner of Interferences denied this motion on the ground that as in practice conception is proved only by disclosure Peters presumably could prove no earlier date than the date of disclosure alleged in his preliminary statement; that therefore Peters's statement "failed to overcome" the filing date of his opponent within the meaning of Rule 114. With respect to Peters's contention that conception. might conceivably be proved by means other than disclosure he stated that if Peters proposed to prove conception by means other than disclosure he should specifically state those means. It is contended in behalf of Peters that he should not thus be required to set forth his case prior to the taking of his proofs. There seems to be some force in this contention; but there is no reason why Peters should not be required, in answer to the order to show cause, to formally state under oath that he contemplates establishing the fact of the conception of the invention by means other than disclosure or the doing of the other subsequent acts alleged in his preliminary statement. This requirement is reasonable, inasmuch as it is obvious that he must so establish the fact of conception if this fact is to be established as of the date alleged. Peters has cited the case of Winsor v. Struble, (C. D., 1904, 158; 110 O. G., 600,) where a motion for judgment on the record, on the ground that Winsor had alleged neither disclosure nor the making of drawings prior to Struble's filing date, was denied. In that decision the following statement occurs: While it is true, in view of these allegations, that Winsor is precluded by his preliminary statement from establishing a conception of the invention in November, 1901, by the means which are usually available for that purpose, nevertheless, under his allegation of conception of the invention in November, 1901, he is privileged, if he can, to establish conception of the invention prior to November 16, 1901, the date on which Struble filed his application. It is therefore seen that the statement filed by Winsor does not fail to overcome the prima facie case made by Struble's date of application. It is interesting to note that the record of the interference of Winsor v. Struble, supra, shows that after Winsor had brought many motions and they had all been decided he terminated this interference by filing a concession of priority in favor of Struble. Experience has shown that it is only in rare cases, if ever, that conception is proved except by a disclosure to others, either orally or by means of some tangible evidence, and it is believed, therefore, that in those cases where a junior party alleges the fact of conception only prior to the filing date of the senior party the better practice is to issue an order to show cause against the junior party. If the case is one of those conceivable but exceedingly rare cases where conception can be established by means other than disclosure and the party against whom the order to show cause has been issued shall within the time set therein file the affidavit of himself or of his attorney setting forth that it is proposed to establish conception by means other than disclosure, the Examiner of Interferences will not render a judgment, but will set times for taking testimony. This practice. will work no hardship upon the junior party, for the rule permits him to bring all valid motions after the order is issued to show cause why judgment should not be rendered. The records of this Office show that the continuance of interferences where the date of conception of the junior party is the only date alleged in his preliminary statement which is earlier than the filing date of the senior party serves no good purpose, but results only in useless delay and expense upon the parties involved. When a rare case is developed, in which the fact of early conception prior to a disclosure may be established by some other means than disclosure, the interference may be proceeded with upon the filing of the required affidavit in response to the order to show cause why judgment should not be rendered on the record. In view of the fact that at the time Peters filed his preliminary statement it was the practice not to issue an order to show cause where the date of conception alleged by a junior party was prior to the filing date of the senior party, Peters is given ten days within which to file an affidavit such as indicated above. If no such affidavit is filed within that time, the Examiner of Interferences will set a limit of appeal from his judgment of March 25, 1905. At the hearing Hopkins's motion to dismiss Peters's appeal was withdrawn. The decision of the Examiner of Interferences denying Peters's motion is affirmed, and Hopkins's motion is dismissed. 69025-H. Doc. 1349, 60-2—10 IN RE JOHN C. DOWD & COMPANY. Decided March 10, 1908. 134 O. G., 1297. TRADE-MARKS-COPY OF APPLICATION-WHEN GRANTED. A petition for a copy of an application for registration of a trade-mark for use in a suit between the applicant and petitioner will be denied when not accompanied by a certificate of the judge before whom the suit is pending. Mr. A. Bell Malcomson for J. C. Dowd & Company. Messrs. Macleod, Calver, Copeland & Dike for The Florence Mfg. Co. MOORE, Commissioner: This is a petition by J. C. Dowd & Company for a certified copy of application filed April 3, 1905, by The Florence Manufacturing Company for the registration of the words "Keep-Clean " as a trademark for toilet-brushes. It is stated that The Florence Manufacturing Company has brought suit againt the petitioner alleging that it has the exclusive right to the use of the words "Keep-Clean" upon toilet-brushes, reciting that the same had been registered in the Patent Office by the said company and that it has introduced in evidence as part of its proofs the certificate of its registration, dated May 11, 1887. It is further stated that the Examiner of Trade-Marks, being called as a witness in this case, testified, by permission of the Commissioner of Patents, as to the filing on April 3, 1905, under the act of 1905, of an application for registration of the same mark and that the records would show that registration had not been granted on this application. It is alleged that the proceedings of The Florence Manufacturing Company in its efforts to obtain registration on the later application are a material part of the defense of the defendant in the abovereferred-to suit. It is well settled that copies of pending applications for patents or abandoned applications will not be furnished to strangers to the record except when the judge before whom a suit is pending certifies that a copy of the application would be material and relevant for the party requesting the same. It is recognized that there is a difference between applications for the registration of trade-marks and for patents on inventions, in that a trade-mark must have been in public use before the application is filed; but it is not believed that this difference justifies a departure from the rule requiring a certificate of the judge before whom the suit is pending. The petition is denied. |