more than two years prior to the Cooper's application. The word as printed follows:

Asbestone

The judge below in his opinion, while admitting the great similarity in design as used in the word "Asbestone and the design as used in the font of type upon which the application is based, apparently based his opinion upon the fact that there were comparatively a few letters in the word "Asbestone," whereas the application was for an entire font of type, and, therefore, could not be anticipated by the use of a few letters only.

[1] We can not agree with this conclusion. It seems apparent to us that given even a few letters a skilled workman could construct an entire font of type of the same design, and that this, while it might involve a very high degree of skill, would not arise to the dignity of an invention. The English alphabet consists of fixed groups, such as the round letters c, e, o, C, G, O, Q, and the oblique line group, as A, V, W, X, Y, Z. Then we have the vertical line group as E, F, H, I, L, T, i, l, m, n, r, u, and the vertical line group combined with a half loop, as B, D, P, R, b, d, p, q. Another combination is the vertical and oblique line group, as K, k, M, N.

It is apparent that the design of any one of these groups would suggest to a skilled workman the design of all the others of the same group, and such a workman, having before him the word "Asbestone," could, without any inventive ingenuity whatever, by exercise of a high degree of skill only, construct the entire font of patent, and it is also apparent that such a font of type, made with the word "Asbestone" used as a model, would differ in no material respect from the font of type upon which Cooper based his application for a patent.

In view of our conclusion as to the design in the word "Asbestone," we do not consider it necessary to discuss the numerous other very similar designs used in other words that were published before Cooper's application.

It has long been a settled rule of patent law, that "that which infringes if later, would anticipate if earlier." Knapp v. Morss, 150 U. S. 221-228; Miller v. Eagle Mfg. Co., 151 U. S. 126.

[2] It certainly can not be contended that if the design of the font of type upon which Cooper based his application were patentable and had been patented, and thereafter the word "Asbestone" was being used, it would not be an infringement on the patent. The word "Asbestone" had a publication date of June 14, 1919, and the public had acquired the right to the use of this design before Cooper's application was made.

As was well stated in the able brief filed on behalf of the Commissioner:

A single design patent is granted for an entire font on the theory that there is but one inventive idea running through the entire font. If, however, we take the position that one letter would not suggest the appearance of the other letter, then there should be a design patent for each letter, as the law contemplates that only one design may be covered by one patent.

There is some intimation in the record that the word "Asbestone " was Cooper's design, but his own publication, disclosing a design

more than two years prior to filing an application for a patent, is a disclosure which precludes the grant of a valid patent thereon. King Ventilating Co. v. St. James, 17 F. (2d) 615 (affirmed 26 F. (2d) 357).

This court has held that while the judgment of Patent Office officials is not absolutely binding on the courts, it is entitled to great weight, and is to be overcome by clear proof of mistake (Gulf Smokeless Coal Co. et al. v. Sutton, Steele & Steele et al., 35 F. (2d) 433. This is obviously true, because the Patent Office has the equipment for deciding intricate and technical questions of this character and its officials whose conclusions are entitled to full faith and credit as the conclusions of Government officials, have no interest or incentive other than to arrive at a right conclusion.

It has long been settled that the true test of identity of a design is the effect of the comparison between the designs upon an ordinary observer and not upon the one skilled in that particular art. As was said by the Supreme Court in the case of Gorham Mfg. Co. v. White, 14 Wall. 511:

No counterfeit bank note is so identical in appearance with the true that an experienced artist can not discern the difference. It is said an engraver distinguishes impressions made by the same plate. Experts, therefore, are not the persons to be deceived.

See, also, Sagandorph v. Hughes, 95 F. 478; Try-Me Beverage Co. v. Metropole, 25 F. (2d) 138; Ashley v. Weeks-Numan, 220 F. 899. There is grave doubt whether Cooper's design, upon which he makes the application, is ornamental so as to bring it within the statute which says that in order to be patentable it must be not only useful but also ornamental (Cooper v. Commissioner of Patents, 38 F. (2d) 852), but in view of our conclusions as above stated we do not consider it necessary to discuss that point.

[3] It is contended on behalf of the appellee that no appeal lies from a decision in his favor in a suit of this character. We can not agree to this contention, as appeals of this character have been considered by appellate courts, and by this court in General Electric Co. v. Robertson, 32 F. (2d) 495. It is also contended on behalf of the appellee that because this appeal is being prosecuted by the Department of Justice and not by the Patent Office, the Commissioner of Patents is the nominal appellant and not the real party in interest. With this we can not agree, as it is clearly apparent that the Department of Justice is the proper agent through which the appeal should be prosecuted.

[4] A question is raised as to allowance for the traveling expenses incurred by counsel for the Commissioner in attending to the taking of depositions on behalf of the plaintiff in California. The time and place of the taking of the depositions was fixed and notice given the Patent Office, by appellee, and the Commissioner thought it advisable to have someone present who was familiar with Patent Office procedure. An attorney was sent from Washington to attend the taking of the depositions. The language of the statute (section 4915, supra) is as follows:

In all cases, where there is no opposing party, a copy of the bill shall be served on the Commissioner; and all expenses of the proceeding shall be paid by the applicant, whether the final decision is in his favor or not.

The judge below, seemingly upon the ground that the allowance of expenses might lead to serious abuses, refused to pay the expenses of the attorney to California, and held that the word " expenses in the statute practically means "costs." We can not concur in this conclusion. The evident intention of Congress in the use of the word "expenses was to include more than that which is ordinarily included in the word "costs." The applicant fixed the time and place of the taking of the depositions, the Government was clearly entitled to be represented by someone familiar with Patent Office procedure and the allowance should have been made by the learned judge below. The courts may be relied upon to prevent any abuse of this interpretation of the statute, which is, to our minds, clearly what Congress intended when it used the word "expenses.

Having in mind that tender consideration, which should be given always to inventive genius, we are nevertheless forced to the conclusion that the action of the trial judge was erroneous. The decree of the court below is reversed and the case remanded with instruction to enter a decree dismissing the bill for want of equity. Reversed and remanded.

STATUTES SECTION 4915 REVISED STATUTES-NOT AVAILABLE TO PATENTEE DEFEATED IN INTERFERENCE.

Where in an interference involving a patent and an application, decision is rendered by the Board of Appeals of the Patent Office adverse to the patentee, such patentee can not proceed by a suit under the provisions of section 4915 Revised Statutes. His only remedy to review the decision of the Board of Appeals is by appeal to the Court of Customs and Patent Appeals or by suit under section 4918 Revised Statutes after the patent has issued to the other party.

APPEAL from the United States District Court for the Northern District of Ohio, Western Division.

Before DENISON, HICKS, and HICKENLOOPER, Circuit Judges HICKENLOOPER, Cir. J.:

A patent having theretofore issued to plaintiff-appellant, certain claims therein were placed in interference with the claims of defendant-appellee's then pending application. Priority was awarded defendant-appellee and this decision was affirmed by the Board of Appeals. No appeal was thereupon prosecuted to the Court of Customs and Patent Appeals, but, instead of so appealing, plaintiffappellant instituted this action in the district court, claiming the right to do so by virtue of Revised Statutes 4915 (35 U. S. C. sec.

63), as it is contended such section must be construed in the light of Revised Statutes 4911, as amended by the act of March 2, 1927 (c. 273, sec. 8, 44 Stat. 1336 [35 U. S. C. sec. 59a]. These sections are designated hereinafter by the United States code section numbers. The bill of complaint was dismissed by the district court upon the authority of MacGregor v. Chesterfield, 31 F. (2d) 791. Plaintiff appeals.

Section 63, if read literally, is restricted in its operation to cases where "a patent upon application is refused." It is just as obvious that section 59a was designed by Congress to apply only to cases of interference proceedings between pending applications, for its closing provision is that, in the event of the election of an "adverse party" to proceed under section 63, "the issue of a patent to the party awarded priority by said Board of Appeals shall be withheld pending the final determination of said proceeding under said section 63." But it is contended by plaintiff-appellant that the rest of the language of section 59a nevertheless applies to an interference proceeding between an applicant for a patent and a patentee, and in the event that priority were awarded to the applicant, and the patentee appealed to the Court of Customs and Patent Appeals, the applicant, as the "adverse party" mentioned in section 59a, could elect to have all further proceedings conducted under section 63 and thus compel the patentee to file a bill in equity in the district court under the latter section. Hence, it is argued, the enactment of section 59a must necessarily have had the effect of conferring jurisdiction upon the district court to entertain a bill in equity under section 63 on behalf of a patentee-interferant, to secure the continued right of enjoyment of the patent already issued-a right said to be in all respects the equivalent of the right to receive a patent.

The district court may impliedly be given jurisdiction under the circumstances of the hypothetical case just stated, but this is a question we need not here or now decide. The facts assumed by such hypothetical case are not present here. While the award of priority was to the applicant, there has been no appeal to the Court of Customs and Patent Appeals by the patentee-interferant; nor has the applicant elected to have further proceedings conducted under section 63. The plaintiff-appellant already has his patent. Notwithstanding the fact that the mention of "adverse parties" in both sections seems to indicate that the remedies were intended to be open to the parties to an interference proceeding, and such a proceeding is specifically mentioned in section 59a, we are constrained to the opinion that the only review open to a patentee-interferant, after an adverse decision by the Board of Appeals of the Patent Office, is by

26

And

1" Whenever a patent on application is refused, the applicant may have remedy by bill in equity; and the court having cognizance thereof, on notice to adverse parties and other due proceedings had, may adjudge that such applicant is entitled, according to law, to receive a patent for his invention, as specified in his claim such adjudication, if it be in favor of the right of the applicant, shall authorize the Commissioner to issue such patent • If any party to an interference is dissatisfied with the decision of the Board of Appeals, he may appeal to the United States Court of Customs and Patent Appeals, provided that such appeal shall be dismissed if any adverse party to such interference shall fille notice with the Commissioner of Patents that he elects to have all further proceedings conducted as provided in section 63. Thereupon the appellant shall have thirty days thereafter within which to file a bill in equity under said section 63. If the appellant shall file such bill within said thirty days and shall file due proof thereof with the Commissioner of Patents, the issue of a patent to the party awarded priority of said Board of Appeals shall be withheld pending the final determination of said proceeding under said section 63."

appeal to the Court of Customs and Patent Appeals, or, after issue of a patent to the applicant, by seeking relief against such interfering patent under Revised Statutes 4918 (35 U. S. C. sec. 66). Sections 59a and 63 were not intended, we think, to open the door to a review in the district court of every decision of the Board of Appeals, and a litigant can avail himself of the remedies there provided only if he brings his case within the conditions so expressly imposed. The decision in MacGregor v. Chesterfield, supra, is approved.

Defendant-appellee in his brief also asks this court to enjoin the commencement of further legal proceedings by plaintiff-appellant, to establish and maintain the patent issued to him, on the ground that such legal proceedings are groundless, vexatious, and oppressive. This issue was not raised below and can not be here noticed. The judgment of the district court is affirmed with costs.

[Supreme Court of the United States]

POWERS-KENNEDY CONTRACTING CORPORATION AND FLECK v. CONCRETE MIXING AND CONVEYING COMPANY No. 3. CONCRETE MIXING AND

CONVEYING COMPANY v. R. C. STORRIE & COMPANY No. 4.

Decided December 15, 1930

402 O. G. 517; 282 U. S. 175

1. PATENTABILITY-INVENTION.

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Neither the combination of old elements or devices accomplishing no more than the aggregate of old results nor the use of an old apparatus or appliance for a new purpose is invention."

2. SAME-SAME-MCMICHAEL PATENT No. 1,127,660.

McMichael Patent No. 1,127,660 for a method and apparatus for transporting concrete Held invalid since it discloses a combination of elements all of which were old in the art and similar combinations had been used for the transportation of granular material, muck, spoil, and grout, also combinations lacking one or the other of the elements of the patented device had been used to transport concrete.

No. 3. ON WRIT of certiorari to the Circuit Court of Appeals for the Second Circuit. Reversed.

No. 4. ON WRIT of certiorari to the Circuit Court of Appeals for the Ninth Circuit. Affirmed.

Mr. Stephen J. Cox and Mr. Lynn A. Williams (Mr. Clifford C. Bradbury and Mr. Albert McCaleb on the brief) for Concrete Mixing and Conveying Co.

Mr. John D. Morgan (Mr. Allan M. Johnson on the brief) for Powers-Kennedy Contracting Corporation et al.

Mr. Charles E. Townsend for R. C. Storrie & Co.

Mr. Justice ROBERTS delivered the opinion of the Court.

These cases involve the validity, and the alleged infringement, of Letters Patent No. 1,127,660, of date February 9, 1915, issued to John H. McMichael, and assigned to Concrete Mixing and Conveying Company.

The Court of Appeals of the Second Circuit, in Concrete Mixing and Conveying Company v. Ulen Contracting Corporation, 12 F.