designated, show the specific features of the adding-machine specified in the claims of the issue.

The testimony shows that the Burroughs adding-machine was on the market first in 1892 and continually until after Newman's application had been filed, and that the name "Registering Accountant " had been put in a prominent place on every machine. The words were also used on the stationery, letterheads and in the pamphlets of the makers, which contain illustrations of the machine substantially the same as shown in Newman's drawings. Expert witnesses for Hopkins testified that they could not construct a machine embodying the issue of the interference from Newman's specifications and drawings alone, because the details of the adding-machine were not therein. shown. But one of these said, on cross-examination, that the keys and case shown in Newman's drawings resembled the Burroughs machine, that he knew of no other machine having the distinctive appearance of the Burroughs, and that he could recognize the Burroughs machine from a side view. Another said that the Burroughs machine comprises accumulating mechanism, sector-bars or type-carriers, movable type in such bars, and a series of hammers for driving the type. These are elements of the issue not specifically disclosed in Newman's application. A third said that all the elements which he had said were not specifically shown in Newman's application were embodied in the Burroughs machine as made in 1901 and several years before, and well known as the Burroughs "Registering Accountant." He also said the outline and certain details of the Newman drawing had the appearance of the Burroughs machine, and he knew of no other machine having those distinctive outlines. Further, he said, that from the drawings and descriptions of Newman he could construct a type-writer and paper-carriage which might be attached to a Burroughs machine, though he could not there from construct the adding machine. He was then asked: "But you could construct the type-writer and paper-carriage in such manner as to use the same in connection with a regular Burroughs machine, used bodily, with the paper-support, of course, unmoved?" To which he answered "Yes." Now, while one unskilled in the art and relying alone on the drawings and specification of Newman, could not have made the adding-machine referred to therein, it is perfectly plain that one so skilled could readily have constructed it; and having constructed it could then construct the type-writing machine and connections, from Newman's drawings and specification, and produce the combination of the issue. Newman did not undertake to make any change in, or improvement upon the adding mechanism of the wellknown "Registering Accountant," patented, manufactured and sold by Burroughs, which he described as a part of his combination. His invention began with it, and consisted in combining therewith the

type-writing machine, and making the specified change in the carriage whereby a single platen is made to coöperate with the separate printing mechanisms of the two machines in combination. The specification and drawings describing the "Registering Accountant" as the adding-machine of the combination, the want of specification of its elements and their functions was supplied and rendered certain by the reference. What was new he described with sufficient detail, and it was not essential to describe that which was old and well known. As was aptly said by the Commissioner:

The specification of a patent is addressed to persons skilled in the art, and a disclosure therein which is sufficient to enable such persons to make and use the same constitutes a compliance with the requirements of section 4888 of the Revised Statutes.

The doctrine is well established. (Kilbourn v. Hirner, C. D., 1907, 552; 128 O. G., 1689; 29 App. D. C., 54, 60; Webster Loom Co. v. Higgins, C. D., 1882, 285; 21 O. G., 2031; 105 U. S., 580, 586; Carnegie Steel Co. v. Cambria Iron Co., C. D., 1902, 592; 99 O. G., 1866; 185 U. S., 403, 437.)

The tribunals of the Patent Office also concurred in holding that Hopkins's evidence was insufficient to show a conception of the invention earlier than the date on which Newman's application had been filed; and we see no reason to doubt the correctness of their conclusion. As Newman was entitled to make the claims of the issue under the description in his application, and was the first to conceive the invention disclosed, it follows that he is entitled to the award of priority.

This renders it unnecessary to consume time with the discussion of the effect of the former adjudication in his favor upon the issue as disclosed in the first interference.

For the reasons given, we are of the opinion that the decision awarding priority of invention to Newman was right, and it will therefore be affirmed; and this decision certified to the Commissioner of Patents as the law requires. Affirmed.

[Court of Appeals of the District of Columbia.]

THE WINCHESTER REPEATING ARMS COMPANY V. THE PETERS CARTRIDGE COMPANY.

Decided March 3, 1908.

134 O. G., 2030; 30 App. D. C., 505.

TRADE-MARKS" SELF-LOADING "-DESCRIPTIVE.

The words "Self-Loading" as applied to a cartridge adapted for use with an automatic gun are descriptive and not registrable as a technical trade-mark.

Mr. George D. Seymour for the appellant.

Mr. Frank T. Brown, Mr. F. A. Hopkins, and Mr. Arthur L. Sprinkle for the appellec.

ROBB, J.:

This is an opposition by The Peters Cartridge Company to the registration of the words "Self-Loading" as a technical trade-mark for cartridges. (C. D., 1907, 181; 128 O. G., 3287.) The grounds of the opposition are that The Peters Cartridge Company is a manufacturer of cartridges similar to and susceptible of the same use as those manufactured by appellant, and that the mark sought to be registered is a necessary and desirable term to apply to certain forms of cartridges.

The record discloses that appellant put upon the market a gun of the type theretofore known as "automatic" and widely advertised it as 66 Winchester Model 1905 Self-Loading Rifle," and that shortly thereafter it designed and put upon the market cartridges adapted for use in the new gun and which it advertised and sold as "Winchester Self-Loading" cartridges. The record further shows that in seventeen different patents issued by the Patent Office from 1837 to 1864 the term "self-loading" has been applied to firearms either by the patentee in describing his invention or by the Patent Office, and that the term as applied to guns is synonymous with "automatic." Counsel for appellant in his brief concedes that the words “SelfLoading" when applied to a gun are "descriptive of the performance of the gun in loading itself." It necessarily follows that the words would not be entitled to registration as a technical trade-mark for guns. But, a gun is no more self-loading than is a cartridge, since it is the recoil of the cartridge when fired that operates the breech mechanism of the gun and thereby ejects the empty shell and permits a fresh cartridge to take its place in the gun-chamber. "SelfLoading," when applied to a gun, suggests to the trade a so-called automatic gun, and when applied to a cartridge suggests with equal force and aptness the function of the cartridge. Moreover, it is perfectly apparent from an examination of the record that appellant selected these words and attempted to trade-mark them because they aptly informed the trade of the purpose for which its goods are made and of the use to which they are to be put. The case, therefore, falls within the ruling of the American Circular Loom Co. case, (C. D., 1907, 481; 127 O. G., 393; 28 App. D. C., 450,) where it was held that the words "circular loom" when applied to "conduits and coverings for electrical conductors containing a resilient spiral lining are not registrable as a trade-mark because “descriptive in the sense of the law forbidding registrating as a trade-mark." The record discloses that there is nothing patentable about the cartridge to which

the exclusive privilege of applying these words is sought. The grant of such a privilege would result in a decided advantage to appellant and enable it to enjoy a measurable monopoly not contemplated or authorized by law.

We conclude, therefore, that the appellant has no right exclusively to use these words as applied to cartridges, and that the Commissioner was right in so holding. The decision appealed from, therefore, is affirmed. The clerk of the court will certify this opinion and the proceedings in this court to the Commissioner of Patents, in accordance with law.

[Court of Appeals of the District of Columbia.]

J. C. SOMERS & Co. v. NEUMAN, EXECUTOR OF THE LAST Will and TESTAMENT OF J. F. HORN.

Decided April 7, 1908.

134 O. G., 2031; 31 App. D. C., 193.

1. TRADE-MARKS-INTERFERENCE-IDENTITY OF GOODS-THE QUESTION SHOULD NOT BE RAISED FOR THE FIRST TIME ON APPEAL.

The question of interference in fact should be raised before the Examiner of Interferences in accordance with the requirements of Rule 49 of the Trade-Mark Rules within the time stated therein. It will not be determined on appeal when not properly raised below.

2. SAME-SAME-CLASS OF MERCHANDISE.

Held that an application for registration of a trade-mark for whisky is not restricted to corn whisky.

Mr. R. H. McNeill for the appellant.

Mr. A. E. Wallace and Mr. E. T. Fenwick for the appellee.

ROBB, J.:

This is a trade-mark interference case in which appellants seek a review of the decision of the Commissioner of Patents awarding priority of adoption and use to appellee of the words "Poplar Log or "Old Poplar Log" as a trade-mark for whisky.

The Examiner of Interferences and the Commissioner in turn have given careful consideration of the evidence in the case, and concur in finding that the appellee adopted and used these marks many years prior to 1884, the earliest date claimed by appellants. We have carefully reviewed the testimony introduced by appellee, and agree fully with the Patent Office tribunals, whose findings of fact in a case like this should receive great consideration.

The appellee in support of his own testimony produced his books and several disinterested witnesses. No effort has been made to impeach or contradict him or his witnesses. We think he has shown that he started in the wholesale liquor business in 1869; that he subsequently in 1874 engaged in distilling; that from 1869 he has continuously handled "Poplar Log" whisky; that he originated this brand; that it has become identified with his name; that he sold this brand of whisky, either labeled or otherwise marked as such, in barrels and bottles throughout many of the Southern States and later in New York State. We do not deem it necessary to consider in greater detail appellee's evidence.

The question was raised before the Commissioner for the first time that there is no interference in fact between these parties, because appellants adopted the words "Poplar Log" as a trade-mark for corn whisky and the testimony shows that appellee has used the mark in connection with the sale of rye whisky. Rule 49 of the Rules of the Patent Office relating to trade-marks requires such a question to be raised within the stated time before the Examiner of Interferences, who in turn is directed by the rule to transmit the papers to the Examiner in charge of trade-marks for his determination. This rule is within the authority of the Commissioner of Patents to promulgate, and must be complied with. Manifestly this court will not determine questions not properly raised below. The Examiner in charge of trademarks is peculiarly qualified by reason of his training and experience to pass primarily upon such a question, and the parties and the Commissioner of Patents and this court are entitled to the benefit of his finding. It would be manifestly unjust to permit the defeated party, who has unsuccessfully endeavored to prevent his adversary from obtaining registration, to now contend that no interference in fact exists. It may be stated, however, that in this case the application of appellants is not restricted to corn whisky but for use as a trademark for whisky.

The decision of the Commissioner of Patents is affirmed, and the clerk of the court will certify this opinion and the proceedings in this court to the Commissioner of Patents, in accordance with law. Affirmed.

[Court of Appeals of the District of Columbia.]

FENNER V. BLAKE.

Decided March 3, 1908.

134 O. G. 2244; 30 App. D. C., 507.

INTERFERENCE-ORIGINALITY-DISCLOSURE MUST INCLUDE IDEA OF MEANS. The communication of an idea of the desirability of accomplishing a certain result, without a disclosure of the means to be employed, cannot be regarded as a communication of an invention,