The ground on which registration was refused is that the mark is descriptive of the character or quality of the goods and that the registration is therefore prohibited by section 5 of the Trade-Mark Act of 1905. It appears that the article to which the trade-mark is applied is an attachment to a scarf-pin to prevent the loss of the latter. 99 The name appears to have been adopted to describe the fact that the clutch holds on to the pin. In the label filed with the application the following statement occurs under the head of “Advantages: "It holds. The harder you pull the tighter it holds." These words therefore seem clearly to describe the character or quality of the clutch. It is well settled by a long line of decisions in this Office and in the courts that words which are descriptive of the qualities of the goods do not constitute valid trade-marks and should not be registered. Examples of such words are "No-Rip" for sweat-pads, which was refused registration in ex parte The Crescent Company, (C. D., 1901, 160; 97 O. G., 750;) "Nevers-Tick" as a trade-mark for lubricant, which was refused registration in ex parte Woolworth, (C. D., 1902, 311; 100 O. G., 1976;) "In Curve" for corsets, which was refused registration in ex parte Kops Brothers, (C. D., 1906, 128; 121 O. G., 1675,) and “Instantaneous" for a preparation of tapioca which was adapted for immediate use without a preliminary soaking, which in the case of Bennett v. McKinley (65 F. R., 505) was held by the court of appeals of the second circuit to be descriptive, and consequently not a valid trade-mark. In the latter case, which counsel for applicants cites as a precedent for the registration of the mark, the following statements are made: No principle of the law of trade-mark is more familiar than that which denies protection to any word or name which is descriptive of the qualities, ingredients, or characteristics of the article to which it is applied. An exclusive right to the use of such a word, as a trade-mark, when applied to a particular article or class of articles, cannot be acquired by the prior appropriation of it, because all persons who are entitled to produce and vend similar articles are entitled to describe them, and to employ any appropriate terms for that purpose. . . Applying the rule to the facts of the present case, we think the word "Instantaneous," as applied to the kind of tapioca dealt in by the parties, is descriptive, and consequently not a valid trade-mark. It not only is aptly and truthfully descriptive of one of the properties of the article to which it is sought to be applied, but it is especially appropriate to point out concisely and accurately the peculiar characteristic which distinguishes the particular tapioca from other varieties. The following extract is cited by counsel for applicant from the case of California Fig Syrup Co. v. Improved Fig Co., (C. D., 1892, 585; 61 O. G., 155; 51 F. R., 296:) Respondent urges that the words "Syrup of Figs" are descriptive It is unimportant if they are descriptive. The whole paragraph from which this statement is taken reads as follows: But respondent urges that the words "Syrup of Figs" are descriptive, and that complainant deceives when it uses them to designate its compound. The deceit does not appear on the face of the bill, and it is unimportant if they are descriptive. The question is now, not whether complainant has the exclusive right to use the words “Syrup of Figs" or "Fig Syrup," but it is whether respondent has by use of them and other words and by the other imitations alleged and exhibited so far imitated the form of complainant's device and description to represent its goods as its goods and appropriate its reputation and trade. The gravamen of the action is the simulation of complainant's devices and the deception of purchasers. From this quotation it appears that the question of the descriptiveness of the mark was held to be unimportant in this case because the suit was brought to restrain unfair competition. The mark which it is sought to register is as descriptive as any of those in the decisions above cited and clearly falls within the definition of what constitutes a descriptive mark given in Bennett v. McKinley, supra. It must be held, therefore, that the action of the Examiner in refusing registration was clearly right. The decision is affirmed. ROBERT A. KEASBEY COMPANY v. PORTLAND CEMENTFABRIK HEMMOOR. OPPOSITION. Decided March 20, 1908, 133 O. G., 1936. TRADE-MARKS OPPOSITION-TIME FOR Filing. The thirty days allowed by statute for filing a notice of opposition include Sundays and holidays. APPEAL from Examiner of Interferences. TRADE-MARK FOR PORTLAND CEMENT. Messrs. Gifford & Bull and Messrs. Foster, Freeman, Watson & Coit for Robert A. Keasbey Company. Mr. Fritz Worm and Messrs. Mason, Fenwick & Lawrence for the Portland Cement fabrik Hemmoor. BILLINGS, Assistant Commissioner: This is an appeal from the decision of the Examiner of Interferences dismissing the above-entitled opposition on the ground that it was filed too late. The record shows that the mark was published in the OFFICIAL GAZETTE December 3, 1907. The notice of opposition was filed January 3, 1908. The ground upon which this appeal is based is that the Examiner erred in not excluding legal holidays in computing the thirty days allowed by law after the publication of the mark for the filing of a notice of opposition. It is well settled that in the absence of positive written law excluding Sundays from the period of time prescribed for any purpose they are counted, even though the period ends on Sunday. (Lewis' Southerland Statutory Construction, vol. 1, p. 335.) The same principle is applicable to holidays. Inasmuch as the period of thirty days fixed by section 6 of the Trade-Mark Act of February 20, 1905, does not contain any provision for excluding Sundays and holidays from such computation, they cannot be disregarded in the computation of time. A similar question was presented in the case of Bass, Ratcliff & Gretton, Lim., v. Hartmann Brewing Company, (C. D., 1906, 143; 121 O. G., 2328,) in which notice of opposition was filed upon the thirty-first day after the publication of the mark, this period including the 30th of May, which is a legal holiday. In that case Commissioner Allen held that the notice of opposition was filed too late. It may be stated that Sundays and legal holidays have uniformly been counted in the periods provided by statute for action upon applications pending in this Office-as, for example, the period of one year within which action must be taken to avoid abandonment (ex parte Koritski and Wipf, C. D., 1904, 498; 113 O. G., 1145; ex parte Weirick, C. D., 1901, 183; 97 O. G., 1372) and the period of six months from the allowance of the application for the payment of the final fee. (Ex parte Riley, C. D., 1891, 136; 56 O. G., 1208; see also the opinion of the Assistant Attorney-General in ex parte Cannon, C. D., 1901, 263; 94 O. G., 2165.) It is therefore held that the dismissal of this notice of opposition was right. The decision of the Examiner of Interferences is affirmed. PRACTICE EX PARTE KONOLD. APPLICATION FOR PATENT. Decided March 21, 1908. 133 O. G., 2189. EXAMINER Bound by the DECISIONS OF THE HIGHER TRIBUNALS. It is self evident that an Examiner should follow the decisions of the higher tribunals whether he agrees with them or not; but where the Examiner holds that a decision is not applicable to a given case the proper manner in which to have his decision reviewed is by appeal to the Examinersin-Chief in the first instance and not by a petition to the Commissioner. ON PETITION. DIES FOR MAKING MATTOCKS AND SIMILAR TOOLS. Messrs. Kay, Totten & Winter for the applicant. MOORE, Commisioner: This petition asks that the Examiner be ordered to show cause why he should not allow the present application and follow the decision of the Examiners-in-Chief in acting upon this and other applications where such decisions rule the questions involved therein. It appears that the claims in the case cover an alleged combination of dies to be used in making mattocks and similar tools. The Examiner held that the claims were not patentable, as they covered aggregations of elements. His attention was called to the decision of the Examiners-in-Chief in the application of John M. Hansen. In this case the same Examiner rejected certain claims for alleged combinations of dies for making wheels on the ground that there was "no combinable relationship between the several sets of dies enumerated therein." On appeal his decision was reversed by the Examiners-inChief, who held that the claims covered true combinations. It is urged by this applicant that the cases are on all fours and that the Examiner should be instructed to follow this decision of the Examiners-in-Chief in this and all similar cases. It is self evident that the Examiner should follow the decisions of the higher tribunals whether he agrees with those decisions or not. It would not be proper, however, for the Commissioner to instruct the Examiner that the claims of a particular application should be allowed in view of a prior decision. The Examiner has pointed out in his statement reasons why he thinks the decision in the Hansen case is not applicable to the present case. If he is in error in this, the proper manner in which to have his decision reviewed is by appeal in the first instance to the Examiners-in-Chief. The petition is denied. GUENIFFET, BENOIT, AND NICAULT v. WICTORSOHN. PATENT INTERFERENCE. Decided April 7, 1908. 134 O. G., 255. 1. APPEAL AND ERROR-JURISDICTION OF COMMISSIONER AFTER DECISION BY COURT OF APPEALS. A decision by the Court of Appeals of the District of Columbia in an interference proceeding which leaves no question open for further considera tion relating to priority of invention terminates the interference proceeding, and the Commissioner of Patents is without jurisdiction thereafter to entertain a motion by the losing party to dissolve the interference on the ground that the court held that the opposing party was not entitled to a patent by reason of his having secured a foreign patent for the same invention on an application filed more than the statutory period prior to the filing of the application in this country. 2. INTERFERENCE STATUTORY BAB TO ONE PARTY AN EX PARTE QUESTION. The question whether one of the parties to an interference proceeding is debarred from receiving a patent by reason of his having secured a foreign patent for the same invention is a question for ex parte consideration after the termination of the interference. On MOTION. MACHINE FOR MAKING MOUTHPIECES. Messrs. Fraser & Usina for Gueniffet, Benoit, and Nicault. MOORE, Commissioner: This is a motion by Gueniffet et al. to dissolve the interference on the ground that Wictorsohn is not entitled to a patent. This interference was decided in favor of Wictorsohn by the various Patent Office tribunals, and the decision of the Commissioner was affirmed on appeal. The Court of Appeals in its decision, rendered February 18, 1908, awarding priority of invention in favor of Wictorsohn, said: It is contended by counsel for appellants that, since appellee filed his application in this country more than seven months after the filing of his application in Austria, the Austrian application, which ripened into a patent, erected a bar against the issuance of any patent to appellee in this country. This contention is answered by counsel for appellee by conceding that, though appellee's application was filed seven months and four days after he filed his application in Austria, and was therefore barred from maturing into a patent under the law as it then existed; that, under the act of Congress of March 3, 1903, the limitation within which an application must be filed here after the filing of a foreign application for the same invention was extended from seven months to twelve months; and that by operation of law his application was revived, and he is entitled to proceed to patent under the present law. To so interpret the act of March 3, 1903, would be to make it apply to applications pending at the date of its passage. This court has decided in the present term that the act of March 3, 1903, cannot be construed to operate retroactively, and, therefore, does not apply to applications pending at the date of its passage. (De Ferranti ▼. Lindmark, post, 353; 134 O. G., 515.) The only question, however, involved in this interference proceeding being one of priority of invention, it is unnecessary to determine what right either of the parties ultimately may have to a patent under their pending applications. The decision of the Commissioner of Patents, so far as this proceeding is concerned, must be affirmed. (Post, 367; 134 O. G., 779.) In view of the above statement of the court of appeals, Gueniffet, et al., contend that the interference should never have been declared, |