EX PARTE THE AMERICAN WRINGER COMPANY. APPLICATION FOR REGISTRATION OF TRADE-MARK. Decided May 25, 1908. 134 O. G., 1803. TRADE-MARKS-PUBLICATION. The question whether any substantial change has been made by amendment after publication in the class of goods stated in an application for registration which warrants a republication of the mark is one which should be left to the discretion of the Examiner of Trade-Marks. ON PETITION. TRADE-MARK FOR BUBBER-ROLL CLOTHES-WRINGERS. Mr. Frank C. Somes for the applicant. MOORE, Commissioner: This is a petition that an order of the Examiner of Trade-Marks for republication of this trade-mark be canceled and the case passed to issue. The record shows that this mark was published in the OFFICIAL GAZETTE of September 24, 1907, and that in such publication" clotheswringers" was given as the particular description of the goods upon which it was used. An opposition was filed and an opposition proceeding instituted, which was subsequently dismissed in view of a stipulation and an amendment limiting the application to "rubberroll clothes-wringers." The Examiner of Trade-Marks held that this amendment changed the particular description of the goods upon which the mark was used and ordered the mark republished in the OFFICIAL GAZETTE. Appellant contends that the above-mentioned change in the goods is one of form and not of substance, or at most is in the nature of a restriction of the goods and was included in the original publication; also that a new publication and a reopening of the case to opposition is unwarranted by law. The latter contention is believed to be untenable. The Trade-Mark Act provides (sec. 6) that— the Commissioner shall cause the mark to be published at least once in the OFFICIAL GAZETTE of the Patent Office and that a notice of opposition may be filed "within thirty days after the publication of the mark." This act leaves it to the discretion of the Commissioner whether the mark shall be republished. It clearly gives him authority to publish it more than once. The question of whether any substantial change has been made in the class of goods or such a change as to warrant republication is one that should be left to the discretion of the Examiner of Trade-Marks. He is an official peculiarly fitted by experience to pass upon this question, and it is conducive to good and uniform practice that his decision upon this matter should be final, as in the case with his decisions regarding the question of the classification of applications for the registration of trade-marks. (Ex parte Nestlé and AngloSwiss Condensed Milk Company, C. D., 1907, 227; 129 O. G., 3160.) The petition is accordingly dismissed. ELLIS V. SCHROEDER V, ALLEN. PATENT INTERFERENCE. Decided June 5, 1908. 134 O. G., 1803. INTERFERENCE-MOTION TO DISSOLVE-TRANSMISSION. A motion to dissolve filed late and based on alleged admissions in a motion filed by the opposing party will not be transmitted. APPEAL ON MOTION. PAINT AND VARNISH REMOVER. Messrs. Duncan & Duncan for Ellis. Messrs. Steuart & Steuart for Schroeder. Messrs. Parker & Burton for Allen. MOORE, Commissioner: This is an appeal by Allen from the decision of the Examiner of Interferences refusing to transmit a motion to dissolve filed by the appellant. The record shows that the preliminary statements in this case were approved January 24, 1908, and that the present motion was not filed until April 27, 1908, which was long after the expiration of the period of thirty days allowed by Rule 122 for the filing of preliminary statements. The Examiner of Interferences held that there was no sufficient excuse for the delay in bringing the motion and also that the subject-matter of the motion was not such as would warrant its transmission. Allen's motion to dissolve alleges that Schroeder has no right to make the claim in issue, and this allegation is based upon supposed admissions in a motion for dissolution filed by Schroeder on April 17. 1908, and certain affidavits to the effect that the issue is not patentable to him. The record shows that Schroeder's motion to dissolve was denied transmission April 24, 1908, and that no appeal was taken within the limit set. It is urged in behalf of Allen that the delay in bringing the present motion is excused by the fact that until Schroeder's motion was filed he had no knowledge of this alleged admission. The Examiner of Interferences held that the present motion should be denied for the reason that the alleged admission in the motion of Schroeder and the affidavits accompanying the same correspond in effect to alleged concessions by a party in his testimony and form no basis for a motion for dissolution. The conclusion of the Examiner of Interferences upon this point is clearly right. A motion for dissolution should not be based upon testimony, affidavits, or other actions of an adverse party filed after the approval of the preliminary statements and which, if accepted by the Office, may form grounds for judgment of priority. (Sullivan v. Thomson, C. D., 1901, 21; 94 O. G., 585; Paget v. Bugg, C. D., 1899, 214; 89 O. G., 1342; Felbel v. Oliver, C. D., 1900, 150; 92 O. G., 2339; Winton v. Jeffery, C. D., 1904, 386; 112 O. G., 500.) In the present case the alleged admission of Schroeder was refused acceptance by the Examiner of Interferences, and his decision has become final by the expiration of the limit of appeal therefrom. In view of these circumstances Allen's motion has no standing, irrespective of the question of delay in bringing the same. The decision of the Examiner of Interferences is right and is affirmed. YOUNG v. TOWNSEND V. THULLEN. PATENT INTERFERENCE. Decided May 18, 1908. 134 O. G., 1804. INTERFERENCE-BURDEN OF PROOF-DISCRETION OF THE EXAMINER OF INTERFERENCES. It is well settled that the question of placing the burden of proof rests in the discretion of the Examiner of Interferences, and his decision on a motion to shift the burden of proof will be reviewed only in a clear case of an abuse of that discretion. ON PETITION. BAILWAY SIGNALING SYSTEM. Mr. George H. Benjamin and Mr. Eugene C. Brown for Young. Mr. George H. Benjamin and Mr. Eugene C. Brown for Townsend. Mr. William L. Pierce and Mr. George E. Cruse for Thullen. BILLINGS, Assistant Commissioner: This case comes up on a petition by Young filed April 6, 1908, that the Commissioner exercise his supervisory authority and review the decision of the Examiner of Interferences rendered March 26, 1908, in which the order of the parties was changed, making Thullen. the senior party. It appears that in the letter of March 19, 1908, setting times for taking testimony, Young was made the senior party, by reason of the fact that his application now involved in the interference was a continuation of an application filed prior to Thullen's application involved in the interference. Attention was called to the fact that Thullen's application is a renewal of an application filed prior to Young's original application, and on March 26, 1908, times were reset making Thullen the senior party. The attorney for Young filed a letter alleging that this was an error, by reason of the fact that at the time Young's later application was filed Thullen's application was forfeited. On April 4th the Examiner of Interferences pointed out why, in his opinion, his action in setting times for taking testimony was right and also made the following statement: If the attorney for Young is of the opinion that the practice is not in accordance with the decisions which he cited his remedy should be sought in a motion to shift the burden of proof. This is clearly a correct statement of the proper practice. It is well settled that the question of placing the burden of proof rests largely in the discretion of the Examiner of Interferences, and his decision on a motion to shift the burden of proof will be reviewed only in a clear case of an abuse of that discretion. Certainly his action will not be reviewed where no such motion has been brought. The petition is dismissed. MCKEEN v. JERDONE. PATENT INTERFERENCE. Decided May 5, 1908. 134 O. G., 2027. INTERFERENCE-APPEAL FILED AFTER EXPIRATION OF LIMIT OF APPEAL WHEN ENTERTAINED. An appeal filed after the expiration of the limit of appeal will be entertained only in very unusual and extraordinary circumstances. ON MOTION. CAR STRUCTURE. Messrs. Duell, Warfield & Duell for McKeen. Messrs. Mason, Fenwick & Lawrence for Jerdone. MOORE, Commissioner: This is a motion by Jerdone that his appeal from the decision of the Examiner of Interferences may be entertained and considered as though filed within the limit of appeal fixed by the Examiner of Interferences. The decision of the Examiner of Interferences awarded priority of invention in favor of McKeen upon a portion of the counts of the issue and in favor of Jerdone upon the remaining counts and fixed April 3, 1908, as the limit of appeal. McKeen filed an appeal on April 3, 1908, from the portion of the decision adverse to him. Jerdone's appeal was filed on April 4, 1908, one day after the expiration of the limit of appeal. Accompanying the motion is the affidavit of Jerdone, in which he states that immediately upon becoming acquainted with the decision of the Examiner of Interferences he determined to appeal and so advised his attorneys, but that he was out of employment, had exhausted his resources, and was unable to borrow the necessary fee for this appeal until after the expiration of the limit of appeal. It seems rather remarkable that Jerdone should have been unable to procure the necessary fee for the appeal during the twenty-day limit of appeal and should have succeeded in doing so immediately upon learning of the appeal filed by his adversary. The practice is well established that an appeal filed after the expiration of the limit of appeal will be entertained only in very unusual and extraordinary circumstances. (Briggs v. Conley, C. D., 1903, 158; 104 O. G., 1119; Blackman v. Alexander, C. D., 1903, 288; 105 O. G., 2059; Kletzker and Goesel v. Dodson, C. D., 1904, 100; 109 O. G., 1336; Greuter v. Mathieu, C. D., 1904, 278; 112 O. G., 253; Gerdom v. Ehrhardt, C. D., 1905, 163; 116 O. G., 595; Brissenden v. Roesch, C. D., 1905, 440; 118 O. G., 2253; Townsend v. Ehret, C. D., 1906, 506; 125 O. G., 2051; Wenzelmann and Overholt, C. D., 1906, 536; 123 O. G., 995.) In the last case cited the Commissioner refused to admit an appeal although filed only two days after the expiration of the limit of appeal. The party then attempted to appeal the matter to the Secretary of the Interior, who held that the question presented was one for the discretion of the Commissioner of Patents, and inasmuch as no abuse of discretion was shown he would decline to entertain the appeal. In the case of Blackman v. Alexander, supra, the Commissioner said: It may be said here that the limit of appeal fixed by the Office will not ordinarily be extended to include an appeal filed too late. It is only under very unusual and exceptional circumstances that such an extension will be granted. (Briggs v. Conley, C. D., 1903, 158; 104 O. G., 1119.) The right of appeal does not stand upon the same footing as the right to a hearing and decision in the first instance. After a party has obtained a full and careful decision by one tribunal upon the merits of his case he must ordinarily comply strictly with the rules in order to have that decision reviewed by an appellate tribunal. 69025-H. Doc. 1349, 60-2—11 |