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sufficient to make out a prima facie case of public use such as to warrant the taking of testimony does not preclude the Primary Examiner from ruling that the evidence taken in such proceedings is not sufficient to warrant the rejection of the claims.

2. APPEAL NOT ALLOWED FROM PRIMARY EXAMINER'S FAVORABLE DECISION ON PUBLIC USE.

The action of the Examiner holding that testimony in public-use proceedings is insufficient to warrant the rejection of the applicant's claims will be reviewed only where such obvious error appears as will warrant the supervisory action of the Commissioner.

SWITCH.

Mr. Albert G. Davis for the applicant.
Mr. Charles M. Clarke for the protestant.

MOORE, Commissioner:

This is a petition by Bergmann, the protestant in the above-entitled case, that he be allowed an appeal from the decision of the Primary Examiner holding that the testimony presented by him to establish the statutory bar of public use against the grant of a patent to Hartley is insufficient to warrant a rejection of the latter's claims.

It is urged that the finding of the Primary Examiner is not only at variance with the evidence, but contrary to the finding of the Commissioner that the affidavits presented by the protestant established a prima facie case of public use. The affidavits presented by the protestant were deemed sufficient to lay the foundation for the introduction of testimony; but they are not in themselves testimony upon which a decision may be based, and, a fortiori, cannot be allowed to contravene testimony taken in accordance with the established rules of evidence. (Nielson v. Bradshaw, C. D., 1900, 265; 91 O. G., 644; 16 App. D. C., 92; Shrum v. Baumgarten, C. D., 1903, 150; 104 O. G., 577.)

Public-use proceedings are ex parte in their nature, the sole question being whether the applicant is barred from obtaining a patent on the invention claimed by reason of the public use or sale of devices embodying the invention claimed.

While it is the practice to permit one of the general public to file a protest and to take testimony in behalf of the Patent Office upon this question, such party has no rights in the controversy other than those authorized by the Commissioner. When the evidence presented has been submitted to the Primary Examiner for consideration and in his opinion this testimony does not establish a statutory bar of public use, there is no greater warrant for a review of his decision upon this question than from a decision by the Examiner that references in his possession, whether obtained by search or upon motion for dissolution

in an interference, do not anticipate the claims of an application. The action of the Examiner holding that testimony in public-use proceedings is insufficient to warrant the rejection of the applicant's claims will be reviewed only where such obvious error appears as will warrant the supervisory action of the Commissioner. In the present case no such error is found.

The petition is denied.

EX PARTE FRANKMAN.

APPLICATION FOR PATENT.

Decided October 14, 1908.

136 O. G., 1999.

DRAWINGS-MUTILATED DRAWING NOT ACCEPTED.

Mutilated drawings will not be accepted by the Office as a part of the permanent records. This rule is founded upon the necessity of preserving the records of the Office for an indefinite period and must be enforced.

ON PETITION.

MACHINE FOR UNEARTHING BEETS.

Messrs. van Oldenneel & Schoenlank for the applicant. MOORE. Commissioner:

This is a petition from an action of the Primary Examiner holding that drawings forming a part of petitioner's application were mutilated and requiring new drawings to be substituted therefor. Petitioner asks that the Primary Examiner be directed to accept the drawings and proceed with the examination and consideration of the application.

Petitioner contends that as blue-prints which have been made from these drawings are satisfactory in every way and exhibit no indication . that the original are mutilated the requirement was improperly made and should be withdrawn. The statement that a satisfactory reproduction may be made from these drawings appears to be true, but this is not the only thing to be taken into consideration. These drawings must not only be in condition at the present time to admit of reproduction, but they must remain in such condition for an indefinite period, as they constitute the originals from which all reproductions are to be made. An examination of these drawings discloses the fact that Sheets 1, 2, and 3, containing Figures 1, 2, 4, and 5, are broken at one or more points, and eventually, by reason of handling thereof, they will undoubtedly actually separate on the broken lines. The well-settled practice of the Office refusing to accept mutilated draw

ings is founded upon the necessity of preserving the records of the Office for an indefinite period and must be enforced.

The request that the Examiner be directed to proceed with the examination and consideration of the application is denied, as he has not refused to consider the application either as to merits or as to form. On the other hand, the case has received action by the Examiner and is now awaiting action on the part of the petitioner in response thereto.

The decision of the Primary Examiner is affirmed.

EX PARTE TENNESSEE BREWING COMPANY.

Decided October 22, 1908.

136 O. G., 1999.

LABEL REFUSED REGISTRATION-LEGEND "GUARANTEED UNDER THE FOOD AND DRUGS ACT JUNE 30, 1906," UNQUALIFIED.

Held that a label should be refused registration where the legend "Guaranteed under the Food and Drugs Act, June 30, 1906," is so used as to be likely to indicate that the merchandise upon which the label is used is guaranteed by the Government.

ON APPEAL.

LABEL FOR BEER.

Messrs. Smith & Frazier for the applicant.

MOORE, Commissioner:

This is an appeal from the action of the Examiner refusing to register a label entitled "Brewette," which is to be used on nonalcoholic beverages. This label comprises the trade-mark of the Tennessee Brewing Company, beneath which appears the word "Brewette," surmounted by two sprays of barley. Beneath the word "Brewette" is a paraph bearing the legend "Contains less than of 1% of alcohol." Under this legend is the statement:

This is a non-intoxicating beverage. Guaranteed under the Food and Drugs Act, June 30, '06, Serial No. 19733. Tennessee Brewing Co. Memphis, Tenn. Label registered.

Registration of this label was refused upon the ground that the inclusion of the guaranty clause in the manner shown in the label caused a likelihood of deception, in that the purchaser might be led to believe that the merchandise upon which the label was used was guaranteed by the Government. It was also suggested that the statement on the label, "Contains less than of 1% of alcohol" immediately preceding the words "Guaranteed under the Food and Drugs

Act, June 30, '06," and over the words "Label registered" would lead to the belief that the content of alcohol was also guaranteed by the Government of the United States. Attention was also called to the fact that the words "Label registered" appearing on the label were unwarranted, since this is not the form of notice required by the Copyright Act and Rule 46 of the Print and Label Rules.

It is contended on behalf of the appellant that the guaranty clause is in strict accordance with that prescribed by the Food and Drugs Act of June 30, 1906, and that there is no likelihood that any purchaser using ordinary care would be misled by the appearance of this clause on the label in the manner shown. It is urged that the copyright covers merely the artistic matter, and it is contended that the Examiner's argument that the typographic matter upon the label is covered by copyright is manifestly erroneous, for such matter is the product not of the designer of the label, but of the Bureau of Chemistry, excepting the statement as to alcoholic contents, and that that statement is merely a statement of fact in common words, which any one has the right to use to state the same fact.

Registration of labels in the Patent Office is provided for by sections 3, 4, and 5 of the act of Congress relating to patents, trademarks, and copyrights, approved June 18, 1874, (18 Stats. at Large, p. 78,) in which it is provided that the Commissioner of Patents shall be charged with the supervision and control of the entry and registry of labels and prints in conformity with the regulations provided by law as to the copyrights and prints. Under Rule 31 of the Print and Label Rules, promulgated under the authority conferred by section 4, the word "Label" is defined as

an artistic and intellectual production impressed or stamped directly upon the article of manufacture, or upon a slip or piece of paper or other material, to be attached in any manner to manufactured articles, or to bottles, boxes, and packages containing them, to indicate the article of manufacture.

Rule 32 provides that

No print or label can be registered unless it properly belongs to an article of manufacture, and is descriptive thereof, and is as above defined, and unless the application is filed before the publication thereof.

Briefly summarized it is necessary that as a prerequisite to registration a label must be artistic and must describe the merchandise upon which it is placed. No further requirement is prescribed by statute. In the present instance the necessary features of the label comprise the artistic production, which includes the word "Brewette" and the statement that it is applied to a non-intoxicating beverage. In addition to this matter, however, there appears on the label, immediately under the phrase "This is a non-intoxicating beverage,” the legend "Guaranteed under the Food and Drugs Act, June 30, '06,

Serial No. 19733," and beneath the latter the name and address of the applicant and the words "Label registered."

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This arrangement of subject-matter is in my opinion likely to cause a purchaser to believe that inasmuch as the label is registered by the Government the character or quality of the goods described as "Guaranteed under the Food and Drugs Act, June 30, '06, Serial No. 19733," is approved by the Government. It is insisted, however, that the guaranty clause above quoted is in the precise form prescribed by the "Rules and regulations for the enforcement of the Food and Drugs Act" and that the use of these words in the present form cannot be objected to. This contention is believed to be untenable. It is easily possible for the guarantor to so place the prescribed legend upon its labels that there can be no likelihood that its use will mislead the public in respect to the actual guaranty.

In my opinion in ex parte Alart and McGuire (C. D., 1907, 409; 131 O. G., 2145) it is said:

At the time the Food and Drugs Act first became effective various manufacturers, either intentionally or inadvertently, so included the guaranty clause with other printed matter upon their labels as to make it appear that the Government had guaranteed the purity of the articles upon which these labels were affixed. This having been called to the attention of the Secretary of Agriculture, the following order was issued by him:

"No other word should go upon this legend or accompany it in any way, Particular attention is called to the fact that nothing should be placed upon the label, or in any printed matter accompanying it, indicating that the guaranty is made by the Department of Agriculture. The appearance of the serial number with the phrase above mentioned upon a label does not exempt it from inspection nor its guarantor from prosecution in case the article in question be found in any way to violate the Food and Drugs Act of June 30, 1906."

It is believed that if the trade-mark now presented for registration should be registered in its present form and if the applicant should place in connection therewith the words "Registered in the U. S. Patent Office," as he is required to do by section 28 of the Trade-Mark Act of 1905, and as the specimen labels filed with his brief show he has done, the public would be lead to believe that the Government had, by registering this trade-mark, guaranteed the purity of the article upon which it was used.

For the same reasons it is believed that a label should not be registered in which the guaranty clause is so located as to be susceptible of the interpretation that the Government is the guarantor of the merchandise contained in the receptacle to which the label is applied. It is believed that where the words "Guaranteed under the Food and Drugs Act" are placed upon a registered label they should be so qualified by the addition of the applicant's name that the true guarantor will be unmistakably identified-as, for example, "Guaranteed under the Food and Drugs Act, June 30, '06, Serial No. 19733, by the Tennessee Brewing Company." In this form the registration of the label would not be subject to the objections above noted,

69025-H. Doc. 1349, 60-2--16

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