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CONSTRUCTION OF STATUTES-Continued.

5. SUFFICIENCY OF DISCLOSURE SECTION 5888 REVISED STATUTES. Where it is contended that a claim of a patent for a water softening apparatus is valid because the patentee substituted a "free" for a "locked" zeolite bed and that he discovered that only with such a bed do the zeolites have the opportunity to rise and spread out and reform the bed, Held that there is no disclosure in the specification of the patent of any such theory or any description of an apparatus of that kind and that although the drawing shows an unoccupied space between the layer of sand and the zeolite bed, no statement of its purpose is made, and that while the drawings may be referred to for illustration and used in interpreting the specification or claim of a patent, they "are of no avail where there is an entire absence of description of the alleged invention or a failure to claim it." & Permutit Company, The v. Graver Corporation, 745. CONSTRUCTION OF TRADE-MARK STATUTES. See Trade-Marks, 14, 15, 61.

CONTRACT. See Construction of Claims, 1.

COPENDING APPLICATIONS. See Anticipation, 4; Applications, 3, 4; Construction of Claims, 48, 81; Interference, 48. COPENDING APPLICATIONS OF SAME INVENTOR.- "The cases so cited appear

to establish the rule that where two applications by the same inventor are copending, it is a matter of indifference which of the patents is issued first, provided that the claims are for separate inventions." *In re Byck, 391.

COPYING CLAIMS. See Interference, 12, 81.

CORPORATIONS. See Interference, 18; Trade-Marks, 16.

COURT OF CUSTOMS AND PATENT APPEALS. See Interference, 2; Petition for Rehearing.

COSTS. See Appeal to the Court of Customs and Patent Appeals, 4; Suits under Section 4915, Revised Statutes, 2.

DAMAGES. See Trade-Marks, 55.

DATE OF CONCEPTION. See Appeal to the Court of Customs and Patent Appeals, 3.

DATE OF FILING APPLICATIONS. See Applications, 1; Interference, 6, 7, 31, 36, 37, 41, 48, 49, 50, 60, 63, 66, 76, 80; Trade-Marks, 5. DECEPTIVE TRADE-MARKS. See Trade-Marks, 7, 46, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99. DECISIONS OF THE BOARD OF APPEALS. See Construction of Statutes,

1, 2, 3; Interference, 14, 26, 27, 50, 51, 52; Jurisdiction of the Court
of Customs and Patent Appeals, 3.

DECISIONS OF THE DISTRICT COURTS. See Disclaimers, 3.
DELAY IN FILING APPLICATIONS. See Interference, 6, 7, 16, 17, 49, 54.
DELAY IN FILING DISCLAIMER. See Disclaimers, 3.

DESCRIPTION. See Anticipation, 7; Construction of Claims, 2.
DESCRIPTIVE TRADE-MARKS.

DESIGNS.

See Trade-Marks, 5, 17, 18, 36, 75, 76.

1. PATENTABILITY-INVENTION MUST BE PRESENT.-"For a design to be patentable it is not enough that it be new, original and ornamental, but it must also be the result of the exercise of the inventive faculty." In re Schierholtz, 45.

2. SAME CLOCK CASE.-A design for a clock case Held unpatentable since it discloses no inventive difference from the prior art. *Id.

3. SAME TOY AIRPLANE.-A design for a toy airplane Held unpatentable over the prior art. *In re Carlson, 59.

4. FONT OF TYPE-ANTICIPATION.-In considering the question of the patentability of a design for a font of type it is immaterial that the prior publication does not disclose all the letters of the alphabet since "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." c Robertson v. Cooper, 692.

5. SAME PATENTABILITY.-A design for a certain font of type Held unpatentable over the prior art. Id.

DESIGNS-Continued.

6. PATENTABILITY.-A claim for an ornamental design for an interior fitting of an automobile body Held properly rejected where the applicant's drawing shows only an automobile body door handle and it appears that the design would not apply to a great many articles embraced in the term "interior fittings of an automobile body." *In re Schnell, 115.

7. ANTICIPATION-MECHANICAL PATENTS MAY BE.-" The references are all for mechanical or product patents, but it is well settled, we think, that a patent upon an article may constitute anticipation of a design. Bradley v. Eccles, 126 Fed. 945; Roberts v. Bennett, 136 Fed. 193." *In re Rutledge, 234.

8. SAME

PATENTABILITY-STOCKING.-Designs for a stocking Held unpatentable over the prior art. *Id.

9. PATENTABILITY-DESIGNS.-A design for wall paper Held unpatentable as lacking in invention. *In re Stirling, 320.

10. SAME SHEET OF GLASS.-A design for a sheet of glass having very slight indentations irregularly placed on one side thereof Held not patentable since "we do not think it is the kind of distinctive ornamental design, the invention of which Congress sought to encourage when it enacted the design patent statute." *In re Shetterly, 384.

11. SAME-SAME.-A design for a sheet of glass Held unpatentable as containing no patentable ornamental distinction over the design of a prior patent. *Id.

12. COMBINATION OF OLD FEATURES MAY BE PATENTABLE.—“*

the

fact that the individual elements of the design are old does not prove want of invention in assembling them into a design. Old and well-known elements may be combined into a design which is patentable. The authorities are wont to state that such a design is patentable if there be invention in it." *In re Whiting, 439. 13. SAME DRESS.-A design for a dress Held unpatentable over the prior art. Id. DILIGENCE. See Interference, 15, 16, 17, 18, 19, 20, 21, 32, 37, 38, 39, 43, 44,

61.

DISCLAIMER. See Trade-Marks, 20, 42, 58.

1. INTENT OF THE STATUTE.-The disclaimer statute is remedial. Its intent is to aid the inventor free from wilful default or intention to mislead the public by permitting him to avoid the consequence of inadvertence, accident, or mistake through prompt disavowal of the apparent right to exclude others from something improperly included in the words of his grant; but escape is permitted only to one who acted originally in good faith and has complied with the prescribed conditions. Ensten and Lion Knitting Mills Company v. Simon, Ascher & Co., Inc., 705.

2. SAME.

In certain definitely-defined circumstances and to the end that a mistaken but honest inventor may obtain relief from the old rule that a patent with an invalid claim was wholly invalid, the disclaimer provisions permit him to deprive the public temporarily of complete freedom from the assertion of a monopoly apparently valid, but not so in fact, but the spirit of the law demands that he act with such promptness as the circumstances permit. Id. 3. SAME DELAY IN FILING.-Where a district court declared a claim of a patent invalid and the owner did not appeal from that decision, although the defendant appealed from the decision holding claims valid, and the disclaimer of the claim was not filed until two years after the district court's decision, Held that the delay in filing the disclaimer was unreasonable under the circumstances and that the owner of the patent is not entitled to the exemption of the statute. & Id.

DISCLOSURE OF INVENTION. See Anticipation, 4, 8; Applications, 3, 4; Claims, 3, 7; Construction of Claims, 6, 11, 21, 48, 54, 61, 66, 96, 105, 111; Construction of Specifications and Patents, 6; Interference, 9, 10, 23, 40, 48, 49, 60, 76, 77, 78, 79, 81, 82, 83; Jurisdiction of the Court of Customs and Patent Appeals, 2; Particular Patents, 1, 3; Patentability, 1; Reissues, 3.

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DISCLOSURE OF INVENTION-Continued. NECESSARY FOR CLEAR AND DEFINITE DISCLOSURES.- "The patentee is entitled to an exclusive use of his patent for the period provided by the statute, but when his patent expires, it must be possible for the public, at least that part of it skilled in the art, to make use of the invention. If the patent does not make this possible, then, upon attack, it may be declared invalid." *In re Stauber, 65. DISCRETION OF THE BOARD OF APPEALS, UNITED STATES PATENT OFFICE. See Appeal to the Court of Customs and Patent Appeals, 1. DISCRETION OF THE EXAMINER. See Appeal to the Court of Customs and Patent Appeals, 1.

DISSOLUTION OF INTERFERENCE.

See Construction of Statutes, 1;

Jurisdiction of the Court of Customs and Patent Appeals, 3. DISTINCTIVENESS. See Designs, 10, 11; Trade-Marks, 38. DIVISION OF APPLICATIONS. See Claims, 4, Prosecution of Applications. DIVISION-ELECTRIC MOTORS FOR MINING MACHINES AND MINING MACHINES. -Division Held properly required between claims which, while mentioning a mining machine in the preamble, recite as elements only motor structure of general application and features of construction provided for preventing sparks produced by the motor from igniting surrounding gas, and claims which include not only the motor and its protective means, but also the cutting and feeding mechanism of the mining machine and frame structure of special use only with such a machine. Ex parte Holmes, 3.

DOUBLE PATENTING. See Construction of Claims, 68; Patentability, 16. 1. PATENTABILITY-DOUBLE PATENTING.-Claims for a method of pasteurizing dried raisins Held unpatentable since not inventively different from the claims of applicant's prior patent. *In re Forrest, 289. 2. SAME-SAME.-"An inventor may not extend his monopoly by securing the allowance of claims not differing in substance from an issued patent." *In re Robinson, 483.

3. SAME

DOUBT.

SAME." Under the doctrine of the Isherwood case, 46 App. D. C. 507, 1917 C. D. 226, it is clear, we think, that appellant is not entitled to claims for a second form of his invention unless such claims to the second form involve an inventive difference over the claims already taken out in the patent for the first form.'" *In re Slepian, 582.

See Interference, 4; Invention, 4, 54; Patentability, 3, 5, 19. DRAWINGS. See Anticipation, 7; Construction of Specifications and Patents, 6; Designs, 6.

DUPLICATE CLAIMS. See Claims, 1.

EARLIER AND LATER APPLICATIONS.

See Interference, 48, 78.

ELECTION. See Applications, 4; Interference, 13, 35; Prosecution of Appli

cations, 1, 2; Trade-Marks, 12.

ELEMENTS. See Claims, 5; Construction of Claims, 7; Construction of Specifications and Patents, 1; Designs, 12; Division of Applications; Invention, 1, 9; Particular Patents, 3; Patentability, 8, 9, 10, 21.

EMPLOYER AND EMPLOYEE. See Patentability, 3, 5, 22, 44, 45.
EQUIVALENTS. See Patentability, 23; Trade-Marks, 73.

ESTOPPEL. See Construction of Specifications and Patents, 1; Interference, 23, 24, 74; Trade-Marks, 24, 45, 46, 53.

EVIDENCE. See Concurrent Decisions of the Tribunals of the United States Patent Office; Interference, 6, 8, 19, 20, 21, 22, 25, 31, 32, 37, 38. 39, 42, 43, 44, 45, 46, 47, 55, 56, 59, 61, 63, 66, 71; Invention, 2; Patentability, 2, 3; Suits under Section 4915, Revised Statutes, 2; TradeMarks, 1, 2, 50, 56, 66, 67, 69, 70, 74.

EXAMINER OF INTERFERENCES.

See Interference, 29.

EX PARTE CASES. See Trade-Marks, 46, 60.

EXPENSES. See Suits under Section 4915, Revised Statutes, 2.
EXPERIMENTS. See Interference, 21.

EXPERTS. See Concurrent Decisions of the Tribunals of the United States
Patent Office; Patentability, 2.

FAC-SIMILE SIGNATURE. See Trade-Marks, 11.

FILING APPLICATIONS. See Interference 6, 37, 49, 54, 60, 63, 66, 80; Trade

Marks, 3.

FINAL REJECTION.

See Appeal to the Court of Customs and Patent Ap

peals, 1. FIRST AND ORIGINAL INVENTOR. See Interference, 4, 15, 16, 17, 18, 19, 20, 21, 22, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 59, 61, 63, 66, 70, 71, 75, 76, 77, 78, 80, 82, 83. FOREIGN PATENTS. See Anticipation 1, 4, 7; Applications, 1; Interference, 40, 50; Patentability, 1.

FORFEITED APPLICATIONS. See Applications, 2.

FORMER DECISIONS APPROVED.

See Interference, 7.

FORMER DECISIONS CITED. See Anticipation, 7; Claims, 6; Designs, 7; Double Patenting, 3; Trade-Marks, 44.

FORMER DECISIONS CONSTRUED. See Anticipation, 4.

FORMER DECISIONS DISTINGUISHED. See Interference, 49.

FRAUD. See Trade-Marks, 48, 49, 50.

FUNCTION. See Anticipation, 3, 5, 8; Construction of Claims, 46; Infringement, 2; Patentability, 1; Trade-Marks, 36.

GEOGRAPHICAL TERMS. See Trade-Marks, 15, 19, 20.
GOODS OF THE SAME DESCRIPTIVE PROPERTIES.

See Trade-Marks,

10, 11, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 46, 47, 52, 53, 57, 66, 70, 78, 79, 80, 81, 82, 84, 85, 87, 88, 89, 92, 93, 94, 95, 96, 97, 98, 99.

GRANT OF PATENT. See Disclaimers, 1; Infringements, 2. PATENTS NOT GRANTED ON MERE POSSIBILITY OF UTILITY.-"Neither the Patent Office tribunals nor the courts may properly grant patents upon a mere possibility that a device might do the things claimed for it, and be useful." *In re Perrigo, 512.

IDENTITY. See Patentability, 23.

INFRINGEMENTS.

See Construction of Claims, 32; Construction of Specifications and Patents, 1; Particular Patents, 5.

1. USE OF UNPATENTED MATERIALS.-The owner of a patent for a particular kind of package employing solid carbon dioxide in a new combination can, if the patent is valid, prohibit entirely the manufacture, sale, or use of such packages or can grant licenses upon terms consistent with the limited scope of the patent monopoly, or it may charge a royalty or license fee, but such owner may not exact as the condition of a license that unpatented materials used in connection with the invention shall be purchased only from the licensor, and, if it does so, relief against one who supplies such unpatented materials will be denied. *Carbice Corporation of America v. American Patents Development Corporation and Dry Ice Corporation of America, 727.

2. SAME.-Infringement, whether direct or contributory, is essentially a tort and implies invasion of some right of the patentee. The exclusive licensee under a patent for a refrigerating transportation package which includes solid carbon dioxide has no right to be free from competition in the sale of solid carbon dioxide. Control over the supply of such unpatented material is beyond the scope of the patentee's monopoly, and this limitation, inherent in the patent grant, is not dependent upon the peculiar function or character of the unpatented material or on the way in which it is used. .*Id. INJURY. See Trade-Marks, 5, 6. INTERFERENCE. See Applications, 3; Construction of Statutes, 1, 3; TradeMarks, 66, 67, 68, 69. 70, 74.

Appeal to the Board of Appeals of the United States Patent Office

1. INTERFERENCE APPEAL-WHAT ΜΑΥ BE CONSIDERED.-The question whether claims are unpatentable to an applicant involved in interference because of the issue of a prior patent to him will not be considered on appeal from award of priority. *Dorer v. Moody, 431.

Appeal to the Court of Customs and Patent Appeals

2. INTERFERENCE-APPEAL-WHAT MAY BE CONSIDERED.-On appeal from a decision awarding priority the Court of Customs and Patent Appeals will not consider the question of the patentability of the issue. * Broadmeyer v. Lindbladh, 291.

INTERFERENCE-Continued.

Attorney and Client

3. ATTORNEY AND CLIENT-RELATION BETWEEN.-" The fiduciary relations between an attorney and his client are of such a nature that the courts have, universally, adhered to the rule that such relation will be closely scrutinized, to the end that the attorney may take no personal advantage at the expense of his client as a result of the confidential relations existing between them. No trust is more complete than that placed by the client with his attorney, and no trust should be more carefully and faithfully observed." *Reusch v. Fischer, 545.

4. INTERFERENCE-PRIORITY-BURDEN OF PROOF.-" The relation of attorney and client, admittedly, existed between Fischer and Reusch in patent matters obviously akin to that here in issue. This being true, the burden devolved upon Fischer to prove the utmost good faith upon his part, and to establish clearly that he, and not Reusch, was the inventor of the subject matter of this interference. If, after considering all the facts, there remains any doubt as to the originality of the invention, such doubt should be resolved in favor of the client." Id.

5. SAME SAME-SAME ANCILLARY DISCOVERY.-" Not only is this true, but if, during such employment, the attorney or other person employed makes valuable discoveries ancillary to the plan disclosed by the employer, such suggested improvements are the property of the employer and not of the employee." *Id.

6. INTERFERENCE

Concealment of Invention

PRIORITY-CONCEALMENT AND SUPPRESSION.-Evidence reviewed and Held to establish that M. concealed and suppressed his invention and did not file an application for patent thereon until he was spurred into activity by the appearance of H's. invention on the market. *Miller v. Hayman, 137.

7. SAME-SAME-SAME.-M. having suppressed and concealed his invention and delayed filing an application until he had learned of the work done by H., Held that priority was properly awarded to the latter. (The rule laid down in Mason v. Hepburn, 13 App. D. C. 86, approved.) *Id.

8. SUPPRESSION AND CONCEALMENT.-Evidence reviewed and Held to establish that the appellee did not suppress or conceal his invention, it not being shown by the record that at the time he manufactured the device and placed it upon the market he knew anything about appelant's invention. *Sachs v. Wadsworth, 515.

Construction of Issue

9. INTERFERENCE-CONSTRUCTION OF THE ISSUE.-" Counts of an issue of an interference are to be interpreted as broadly as the language will reasonably permit. But express limitations in the counts can not be ignored. Nor can details of structure be read into a count from a consideration of the disclosure when the language used in the count, if given its broadest meaning, does not reasonably embrace the subject matter." *Hartog v. Long and Gulick, 267. 10. SAME

ISSUE CONSTRUCTION.-The counts of an interference ought to read broadly and not narrowly and with limitations not justified by the nature of the invention disclosed. *Braren v. Horner, 278. 11. SAME SAME SAME.-The words "An engraving machine and the like," comprising the introductory clause of a combination claim relating to a drive mechanism, Held to be merely introductory and not to impose any limitation upon the claim. *Id.

12. SAME PRIORITY.-In an interference involving a patent the counts must be construed in conformity with the patent in which they originated, and the applicant, having copied claims of the patent for the purpose of interference, is bound by the meaning placed upon them by the patentee. *Field v. Stow, 594,

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