Appellant states that the question involved in the decision of this case is: "May the structure carried by the plate 16 be properly designated as an indicating device?" Applicant's disclosure shows two pressure-carrying pipes leading from the gasoline tank to an indicating device on the switchboard. Each pipe is independent of the other, and they are in no way connected. One pipe goes to the bottom of the gasoline tank, has an open end in the tank, and the height of the gasoline in the tank is registered on the switchboard by means of the gasoline entering the open end of the pipe and compressing the air in the pipe, thus controlling the height of the indicating liquid on the switchboard. This feature is not claimed to be new. The other parallel pipe at the tank end curves U-shaped down into the tank and out of it, having no open end, and is intended, through the medium of air pressure, as affected by the difference in temperatures, to register on the switchboard end of the pipe the effect of the variations of temperature upon this pipe. The two so-called indicating devices on the switchboard have no connection with each other except that they are parallel with each other and have a row of numbers between them. It is claimed that, by observing the height of the gasoline in the first indicator and calculating the variation of temperature by the second one, the exact amount of gasoline in the tank may be ascertained. A slide, movable by hand up and down the scale of numbers, is provided. The Examiner and the Board of Appeals found that the function for the two pipes claimed by applicant could only be performed through the medium of calculation and that the structure did not respond to the term "indicating device." The board further held that There is no question as to what applicant's construction is, nor that it is novel, but it should be possible to find language to more accurately define it. Applicant admits that his claims are broad, but defends them upon the theory that broad claims more effectively prevent infringe ment. It seems to us that applicant might have been entitled to a patent for the kind of device he has disclosed, but that his disclosure does not warrant the allowance of the claims, which do not read upon the disclosure. We do not think that either in the drawing or specification, applicant has disclosed a means which registers the difference between the pressures in the two tubes, nor do we think the device as a whole indicates the depth or the quantity of the liquid in the container, in the manner claimed. The decision of the Board of Appeals is affirmed. [U. S. Court of Customs and Patent Appeals] IN RE BEERS No. 2,558. Decided December 1, 1930 402 O. G. 706; 44 F. (2d) 859 PATENTABILITY-INVENTION-MAKING ELEMENT IN TWO PARTS. Certain claims for a stoker Held unpatentable since making one of the parts in two pieces instead of in one, as was old, did not constitute invention. APPEAL from the Patent Office. Affirmed. Messrs. Whittemore, Hulbert, Whittemore & Belknap and Mr. Lawrence J. Whittemore and Mr. William H. Gross for Beers. Mr. T. A. Hostetler and Mr. Howard S. Miller for the Commissioner of Patents. BLAND, J.: This is an ex parte appeal from the decision of the Board of Appeals of the Patent Office, refusing to allow claims 3 to 8, inclusive, upon the construction of a stoker or fuel feeding device. Claim 3, which is illustrative, reads as follows: 3. In a stoker, the combination with a retort, and an ash receiver spaced laterally therefrom, of a flooring for fuel between said retort and ash receiver, including a tuyère bar, an imperforate part and means for removably supporting each floor portion independently of the other. The references relied upon are: Blackburn et al., 1,326,906, January 6, 1920; Skelly, 1,522,918, January 13, 1925; Helander (Swedish), 45,889, May 19, 1917. Appellant has provided, as part of the fuel bed of the stoker, tuyère bars and dead plates formed separately and mounted independently, and it is claimed that the advantage of his claimed invention chiefly rests in the facility of the removing of the parts. The sole question in the case is whether or not the references anticipated appellant's claimed invention. It is not necessary for us to discuss all the references. They are discussed in the opinion of the Board and we think aptly. It is at once apparent that in Helander, supra, substantially the same parts are made in one piece, which can be removed. It is held that constructing the same element in two parts, in view of the disclosures of Blackburn, supra, and Skelly, supra, does not constitute invention. We agree with the decision of the Board of Appeals and the same is affirmed. Affirmed. [U. S. Court of Customs and Patent Appeals] ROTEX SURGICAL APPLIANCE COMPANY v. KOTEX COMPANY TRADE-MARKS No. 2,531. Decided December 1, 1930 402 O. G. 707, 44 F. (2d) 879 OPPOSITION-LIKELIHOOD OF CONFUSION. The term "Rotex," as a trade-mark for an antiseptic powder, Held properly refused registration as confusingly similar to the term "Kotex" used upon sanitary napkins made up of cellutextile material with deodorant powder placed between the layers, or incorporated in the meshes, thereof. APPEAL from the Patent Office. Affirmed. Messrs. Barthell & Barthell, Mr. Otto F. Barthell, and Mr. Theo. K. Bryant for Rotex Surgical Appliance Co. Messrs. Fisher, Clapp, Soans & Pond and Messrs. Browne & Phelps for Kotex Co. GARRETT, J.: Appellant seeks to register as a trade-mark for use on certain antiseptic powders, a composite mark "comprising a rectangular blue background on which appears a circular red portion across which is the notation Rotex,' a stem and an arrow head at its end, being shown extended to one side and downwardly from the red disk." There appear at different places on one of the specimens filed, the statements "A Boon to Womanhood," "For Irritation," "For All Odors," "For Leucorrhea," the arrow of the mark pointing to these notations. On another specimen appear other statements purporting to give the uses for which the article is designed, there being simply a different form of the above-quoted phrases. It is made manifest that appellant's article is for use by women. Appellee, pleading its registration of the word "Kotex," used upon sanitary napkins, opposes the application, on the ground that the marks are similar and that the goods are of the same descriptive properties, so that applicant's use of its claimed mark would be likely to lead to confusion or deceive purchasers, to the damage of opposer. The Examiner of Interferences dismissed the opposition and held applicant to be entitled to the registration sought. Upon appeal to the Commissioner of Patents the decision of the Examiner was reversed and registration denied. The applicant then appealed to this court. The opposer has taken testimony but the applicant has not. It satisfactorily appears that the opposer was long prior in the field with the adoption and use of its mark upon its particular goods. It is shown that the opposer spent enormous sums, $2,000,000 in 1927 and $1,500,000 in 1926 and a like sum in 1925 in advertising its business and that its sales have reached the very great sums of $1,000,000 in 1923, $2,000,000 in 1924, $5,000,000 in 1925, $8,000,000 in 1926, and it is testified, about $11,000,000 in 1927. It is evident, in consequence, the opposer is in possession of a very valuable good will as an asset to its business. Under these circumstances, it is plain the applicant should have selected a mark which would, beyond reasonable doubt, bring about no confusion of origin of goods. The opposer's catamenial bandages are stated to be made up of cellutextile material and between the layers there is placed, or within the meshes incorporated, a quantity of deodorant powder, in the process of manufacture. There is also testimony that antiseptic or deodorant powders are used by women in connection with sanitary or other napkins of this kind for the same purpose that the antiseptic or deodorant powder is incorporated in the opposer's sanitary' bandages. It seems proper to hold, therefore, that the goods of the opposer include as one of its constituents or elements an antiseptic powder which may well be the particular kind of antiseptic powder to which the applicant applies its mark. The specimens of the use of the applicant's mark indicates clearly enough that its antiseptic powder is of a character that is used by the users of the opposer's goods and for the same purpose that the antiseptic powder is incorporated in the opposer's catamenial bandages. While the applicants' mark is not wholly identical with that of the opposer and the significance of the former is different from that of the opposer's mark yet in connection with the goods upon which the applicant uses its mark there is no suggestion of significance at all. It is true the applicant's goods would be sold in smaller containers and for a much higher price as to the size of the package as compared with the goods of the opposer, yet it is believed the applicant should have selected a term which does not approach so closely to the mark of the opposer. As has so frequently been noted in previously adjudicated cases, the applicant had an unlimited field from which to choose its mark and there would appear to be no excuse for so closely approaching the mark of the opposer. If there is doubt, and it would appear that this is the fact, it must be resolved against the newcomer. William Waltke & Co. v. Geo. H. Schafer & Co., 273 O. G. 630, 49 App. D. C. 254; The Kaut-Reith Shoe Company v. International Shoe Company, 239 O. G. 939, 45 App. D. C. 545. We agree with the conclusion reached by the Commissioner and see no occasion for attempting any addition to the reasons so succinctly and clearly stated by him as quoted, supra. The decision of the Commissioner is affirmed. [U. S. Court of Customs and Patent Appeals] IN RE MEINECKE No. 2,545. Decided December 1, 1930 402 O. G. 707; 44 F. (2d) 674 1. PATENTABILITY-SYRINGES. Claims for a glass syringe having corresponding numbers on the barrel thereof and on the piston Held unpatentable over the prior art. 2. SAME INVENTION-EVIDENCE OF COMMERCIAL SUCCESS. 66 Commercial success in placing the devices so marked upon the market is not an evidence of invention, however strongly it may speak for utility, except in a doubtful case. A patent must be based on invention; not commercial success." APPEAL from the Patent Office. Affirmed. Messrs. Hauff & Warland and Mr. William E. Warland for Meinecke. Mr. T. A. Hostetler and Mr. Howard S. Miller for the Commissioner of Patents. GARRETT, J.: By concurring decisions the respective tribunals of the Patent Office rejected all of appellant's claims for patent on improvements on syringes. The claimed invention is for a method of marking, by corresponding numbers, the barrels and pistons of glass syringes, so that when taken apart for sterilization or other purposes, the particular piston belonging to a particular barrel may be easily identified; also, for the articles themselves. Appellant quotes claims 4 and 5 of his application as originally filed (11 and 12 in the final form) as typical: 4. As a new article of manufacture a glass syringe with ground-in piston comprising a number on the barrel of the syringe and the same number on the piston of the syringe. 5. The method of marking glass syringes containing a removable ground-in piston by consecutively numbering the barrels and consecutively numbering the pistons and having the same number on the barrel and its corresponding piston. In affirming the decision of the Examiner, the Board of Appeals said: It is common knowledge that parts of built up constructions are identified so that they may be properly selected and fitted together by means of identification characters placed thereon. Door keys for locks, and various other parts of an automobile are so identified and different parts of machines and tools are thus identified. The identification characters are either painted, stamped, or cut into the parts, depending upon the material of which they are made and the degree of permanency that is sought. The parts that applicant seeks to identify with each other are the piston or plunger of an all-glass syringe and its cylinder. We see nothing inventive in the method of identifying these parts by placing identifying marks thereon whether such marks are of a permanent character or not, nor do we see anything inventive in the selection of desirable locations on such parts for such marks. The article is a glass syringe. To place etched or ground-in characters upon the exterior of the parts, the plunger and the cylinder in which the plunger works would not involve invention even though the location of the characters on the plunger are so placed that they would appear through the transparent glass cylinder adjacent the characters on the cylinder when the parts, the plunger and cylinder, are in assembled positions. Reference was made to a patent showing locks and keys, marked by corresponding numbers, and also to one wherein the principle was applied to car seals. [1] We agree with the tribunals of the Patent Office. Surely there can be no invention in applying to glass syringes a practice, the exact principle of which has been applied in innumerable arts, probably from the time that men first learned to write characters representing numbers. [2] Commercial success in placing the devices so marked upon the market is not an evidence of invention, however strongly it may speak for utility, except in a doubtful case. McClain v. Ortmayer, 141 U. S. 419, 57 O. G. 1129; Union Biscuit Co. v. Peters, 125 F. 601, and authorities therein cited. A patent must be based on invention; not commercial success. Unless a device is a product of the inventive faculties, the mind advancing" from the known to the unknown by a transition natural to the ordinary instructed intellect there is no invention." Farnham v. United States, 47 C. Cls. 207. In Excella Pattern Co. v. McCall Co., 5 F. (2d) 61, a garment pattern patent infringement case, the U. S. Circuit Court of Appeals, Second Circuit, said: It has occurred to all industries, and in nearly every practice of life, to mark for assistance and identification two things which are liable to be confused, giving the name, number, or some identifying provision. Court records, lawyers' papers, manufacturers, and, indeed, men in everyday affairs of life, avoid confusion by so doing. The authorities cited by appellant do not, we think, sustain his contention of patentability in the face of the authorities quoted and cited herein. Both the authorities and reason are adverse to the patentability of the claims. The decision of the Board of Appeals is affirmed. INTERFERENCE [U. S. Court of Customs and Patent Appeals] No. 2,308. Decided December 1, 1930 403 O. G. 3; 44 F. (2d) 870 PRIORITY-RIGHT TO MAKE THE CLAIMS. Record reviewed and Held to establish that P., the senior applicant, is entitled to make the claims in issue and that, no testimony having been taken, priority was properly awarded to him. APPEAL from the Patent Office. Affirmed. |