In this case the record conclusively shows that the applicant, Uri & Co., was not entitled to the exclusive use of the mark because of the misleading and deceptive statements contained on their labels. It was the purpose of the act to protect honest manufacturers and dealers because in so doing the public would in turn be protected. It was not the purpose of the act to recognize the right of any person, firm, or corporation, to deceive the public by the use of a deceptive mark. In other words, the Government will not become a party to a fraud. (Schuster Co. v. Muller, C. D., 1907, 455; 126 O. G., 2192; 28 App. D. C., 414.) It is our conclusion that because of the misleading statements on the labels containing the mark, appellee can claim no property right therein, and is not entitled to claim the benefits of the Trade-Mark Act. The decision of the Commissioner of Patents is reversed, 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. Reversed. [Court of Appeals of the District of Columbia.] Decided April 7, 1908. 135 O. G., 1585; 31 App. D. C., 201. 1. PATENTABILITY- -CONNECTING PARTS BY CASTING. Where a claim covers a lathe structure comprising a pair of uprights and a bed consisting of two sections of shafting arranged one above the other, said sections having their ends cast or embedded in the uprights, Held that there is nothing patentable in the idea of casting the ends of the cross-bars into the uprights. 2. SAME ANTICIPATION-NON-ANALOGOUS ARTS. A lathe having a bed consisting of two horizontal bars arranged one above the other is not anticipated by a drill-frame having two verticallyarranged bars, the two devices having different functions and belonging to remote arts. Mr. A. Miller Belfield, Mr. L. S. Bacon, and Mr. J. H. Milans for the appellant. Mr. W. S. Ruckman for the Commissioner. ROBB, J.: This case brings into review the decision of the Commissioner of Patents refusing to allow three claims for patent on certain alleged improvements in turning-lathes, the ground for the decision being that in view of the prior art the claims do not involve patentable novelty. The claims are as follows: 1. A lathe comprising a pair of uprights and a bed consisting of a couple of metallic bars or rods arranged one above the other, said sections having their ends embedded in the uprights, substantially as described. 2. A lathe comprising a pair of uprights and a bed consisting of a couple of sections of shafting arranged one above the other, said sections having their ends cast into said uprights, substantially as described. 5. A lathe comprising a pair of uprights and a pair of bars or rods arranged one above the other and secured at their ends to said uprights, substantially as described. The references, upon which the Commissioner rejected the above claims, are: Post, December 18, 1877, No. 198,211; British patent to Trueman, No. 22,014, December 16, 1891. In the old construction the bars forming the ways for the toolcarriage and foot-stock are arranged in a horizontal plane, and the clamping-screws, which hold the carriage and foot-stock, pass down through the opening between the bars. In the construction described in the claims of the issue the bed consists of two uprights and two bars or rods connecting said uprights and arranged horizontally and one above the other instead of in a horizontal plane, and taking the place of the shears or ways in the ordinary lathe. The Commissioner has allowed appellant two claims covering the specific structure of his carriage, but has denied him the claims which give utility and value to that structure. Let us consider the reference which impelled the Commissioner to such a conclusion. The British patent to Trueman, which we will first consider, covers a drill the function of which is far different from that of a lathe and in the development of which different considerations necessarily would be involved. While it is true that there are parts of the two devices which are similar, it is equally true that the purposes and uses of those parts are essentially different. The lathe operates in a horizontal, the drill in a vertical plane. In a lathe absolutely accurate alinement is essential since the material operated upon rotates laterally against the cutting-tool, which is held by the operator and supported by the rest or carriage. To insure this accuracy of alinement, strength and rigidity of the parts are necessary. In a drill there is very little tendency towards lateral vibration, consequently there is no necessity to prevent it by a specially-adapted structure. In the British patent we find two vertical bars arranged one behind the other and supporting and separating the drill and work-table, but anchored only at the bottom ends. It is apparent that many and radical changes would be necessary to transform this drill into the lathe of the issue, and it is a fact that ten years elapsed between the granting of the patent to Trueman and the production of applicant's device. In view of the remoteness of the arts and the fundamental differences in the structures of the two devices, we think it would violate the spirit of the patent laws to rule that the two vertically-arranged bars in the Trueman drill anticipated the horizontally-placed bars of the lathe of the issue, the function of each being different. The Post patent, issued more than thirty years ago, is cited as an example of the ordinary turning-lathe. Post's device contains a heavy metallic base or bed having a slot cut longitudinally therethrough to form the ways or shears through which the projection of the head and tail blocks and rest pass and move back and forth. There is a tube above the bed, but its function is to guide the head and tail blocks and rest and not to form any part of the ways or shears. In appellant's device he has entirely dispensed with this guide-bar by so constructing his shears or ways that they perform all the functions of both the bed and guide-bar of the old construction. He has produced a much simpler and a much lighter device. It is not contended by either of the three tribunals of the Patent Office that his lathe is not an improvement over the wider, heavier and necessarily more expensive lathe of the prior art; neither is it contended that the idea which it embodies was ever before given form. It is much easier to follow than to lead, and it is easier to accept a result than bring it about. We think appellant's lathe marks an advance in the art, that its construction involved invention, and that it should be protected by patent by the allowance of his first claim. We agree with the Commissioner that there is nothing patentable in the idea of casting the ends of the cross-bars into the uprights, and we also find that claim No. 5 is too broad. The decision of the Commissioner is affirmed as to claims Nos. 2 and 5, and reversed as to claim No. 1. The clerk of the court will certify this opinion and the proceedings in this court to the Commissioner of Patents, according to law. [Court of Appeals of the District of Columbia.] Decided April 7, 1908. 135 O. G., 1801; 31 App. D. C., 205. 1. INTERFERENCE-DIVISIONAL APPLICATION ENTITLED TO DATE OF ORIGINAL AS CONSTRUCTIVE REDUCTION TO PRACTICE. A divisional application dates back to the original one and secures to the applicant the benefit of a constructive reduction to practice, whether the claims of the divisional application were in the original when filed or not. 2. SAME DELAY IN CLAIMING INVENTION. Applicant does not lose his right to claim an invention disclosed in his application by the fact that he makes no specific claim thereto until after another party files his application for the same invention. Mr. S. T. Cameron, Mr. Reeve Lewis, Mr. C. A. L. Massie, and Mr. ~ John II. Miller for the appellant. Mr. Vernon M. Dorsey and Mr. Thos. Ewing, Jr., for the appellee. SHEPARD, C. J.: This is an appeal from the decision of the Commissioner of Patents awarding priority of invention of a means for observing dustladen currents, to David T. Kenny in an interference proceeding with Augustus Lotz. The issue is contained in the four following counts: 1. In combination with a passage for a current of dust-laden air, means in said passage for intercepting the current, such means including a transparent chamber, in which the action of the intercepted current can be observed. 2. In combination with a passage for a current of dust-laden air, means connected in said passage for changing the direction of the current, such means including a transparent receptacle, in which the action of the current in its changed direction can be observed. 3. In combination with a passage for a current of dust-laden air, means in said passage for intercepting the current and compelling it to change its direction, and a transparent chamber into which the intercepted current is admitted and from which it is discharged. 4. In combination with a passage for a current of dust-laden air, a transparent chamber projecting at an angle to the general direction, of said passage, and means for compelling the current to enter said chamber and to leave said chamber and return to said passage. The original application of Kenny was filed November 29, 1901, and the application in the interference was filed as a divisional one June 1, 1905. Lotz filed June 3, 1904, and a patent was issued to him thereon, September 6, 1904, No. 769,618. Lotz, in his preliminary statement, alleged conception on or about August 1, 1892, drawings made on or about February 1, 1893, disclosure to others on or about May 1, 1895, reduction to practice about July 1, 1900. Kenny's preliminary statement is not produced in the record, for the reason, doubtless, that he took no testimony and rested his case on the date of conception and reduction to practice, claimed as obtained by the filing of his original application. Testimony on behalf of Lotz tended to show the construction and use of a device about July, 1901, which it is claimed, embodied the invention of the issue. It is also contended on behalf of Lotz that Kenny was not entitled to amend his original declaration, and by means of his second application carry back his date of conception. and constructive reduction to practice to the date of the original application. The tribunals of the Patent Office, in succession, awarded priority to Kenny. We will consider the questions presented, beginning with the second one. A part only of the specifications and drawings of Kenny's original application is contained in the record. It does not appear what his claims were, but we understand that the application covered an entire apparatus for removing dust by suction from the floors of rooms, etc., with claims therefor. The specification recites that "the invention consists of certain features of construction and combination of parts to be hereinafter described and then particularly claimed." Thereafter follows a description referring to his drawings in detail which concludes thus: In Figure 4, the branch pipe 50 which leads to the hand implement or corresponding part is connected with a head 51 by a tube 52 which has a sliding connection with the head 51 into which it is inserted. The inner end of the tube 52 is inserted into a tubular glass 53 closed at one end and at the other end coupled to the head 51 so that it may be used for the purpose of demonstration, in observing the quantity of dust sucked through the tube 52. The drawing accompanying the application shows this means for observing the dust-laden air-current, in its passage from the hand implement or sweeper to the receiving device or chamber where the dust is deposited. The record does not show the different actions in the Patent Office on this application, but no doubt there were objections and suggestions made from time to time. It appears, however, that after the issue of the patent to Lotz, the applicant amended by inserting the claims of the issue, which were copied from the patent. On July 15, 1905, the Examiner reported that the claims are for separate and distinct inventions, and notified the applicant that as the claims for carpet-cleaners have had consideration the applicant is required to restrict his claims by the cancelation of the claims aforesaid. In the meantime, on June 1, 1905, the application of the interference was filed. In this he says: In my prior application, filed November 29, 1901, serially numbered 84,058, I have shown an apparatus for use in such a system, and in the said application have shown in connection therewith an observation-chamber having transparent walls, through which the dust-laden air was caused to pass on its way from the hand tool to the pump by which the vacuum was produced, whereby the amount of dust carried by the air can be ascertained, and in this application, which is filed as a division and as a continuation of the said prior application, I claim the means therein shown for so observing the character of the air-current. After referring to the drawings and describing them he made five claims, four of which are identical with those of the issue. It is quite clear that the invention of the issue was disclosed in the prior applications, though no specific claims therefor were made until after the issue of the patent to Lotz. The claims could have been inserted therein by amendment, but for the rule of the Patent Office which does not permit a patent to issue for two separate inventions. Under such conditions, nothing remained but to file a new and divisional application, or to abandon this part of the invention. The first contention on behalf of the appellant is that, as section 4888 Revised Statutes requires that the application shall not only contain a full description of the invention but also contain claims for 69025-H. Doc. 1349, 60—2——31 |