words "Buster Brown as a trade-mark for comic sections of newspapers. On February 16, 1906, Outcault filed his application for cancelation of this registration. This proceeding has been pending for over two years and has been vigorously contested at every step. After pleadings were filed, proofs taken, and the case ready for final hearing Outcault seeks by his present motion to terminate the proceeding without prejudice to his right to file a new application for cancelation of said registration.

Appellant contends that the United States courts permit, as a matter of course, such voluntary dismissal by the complainant at any time before final hearing and that the Examiner of Interferences was in error in not following such practice, especially in view of the provision of Rule 153 of the Rules of Practice of the United States Patent Office that

In contested cases the practice on points to which the rules shall not be applicable will conform, as near as possible, to that of the United States courts in equity proceedings.

Appellant's contention is believed to be erroneous. It does not appear to be the general practice of the Federal courts to permit the complainant to dismiss his bill without prejudice and upon the payment of costs when the case is ready for final hearing. The right of a complainant to dismiss his bill was discussed by Judge Taft, while circuit judge, in the case of the City of Detroit v. Detroit City Ry. Co., (55 F. R., 569.) In that case the Court said:

The motion to dismiss presents a question of equity practice which is not as clearly settled as could be desired. It seems hardly fair that after a case has been got ready for hearing and the defendant has gone to the expense of a full preparation, the complainant may deprive the defendant of the benefit of all that preparation by a dismissal, under which he reserves full power to harass him by bringing a new bill when he shall choose to do so, on the simple condition that he pay the costs, which are so notoriously inadequate to compensate defendant for his actual expenditures.

In the later case of Georgia Co. v. Bilfinger, (129 F. R., 131,) where the complainant moved to dismiss his bill under circumstances somewhat similar to those of the present case, the Court said:

This motion must be denied. It is well settled by authorities that a complainant cannot dismiss his bill at will after proofs are taken and the case is set for final hearing. Such motion is an address to the sound discretion of the court but will not be granted in a case where "such proceedings have been taken as entitle the defendant to a decree." (Chicago Co. v. Union Rolling Mill Co., 109 U. S., 702.)

In this case no reason is cited why complainant desires to dismiss its bill, except as it appears from the proceedings that complainant realizes the complete failure to make out a case against the defendants. * If this suit

here should now be merely dismissed by an order on request of complainant, the same issue will be required to be litigated in the other case. This procedure may be repeated by complainant as often as it may succeed in inducing the courts to dismiss its bills before judgment, and without prejudice after the

proofs are taken and the case set down for final hearing. Such proceeding would certainly be vexatious to the utmost, and work irreparable injury to defendants' interests. For these reasons, complainant's motion is denied, and the case will be considered and decided by the court on the proofs, and a judgment entered therein.

Moreover, in cases where the courts countenance dismissals without prejudice upon the payment of costs it is on the theory that the defendant is compensated by the costs. The Patent Office, however, has no authority to award costs, and this is another reason why it should not countenance such practice.

No case is found where the Patent Office has granted a motion of this character, and no such case has been cited by appellant. Rule 125, relating to interference between applications for patents, specifically states that when an interference is finally declared it will not be determined without judgment of priority unless it develops that the interference should never have been declared, and it is accordingly dissolved. The trade-mark rules apparently do not sanction the granting of motions of the character under consideration any more than the rules relating to patent applications, for Rule 55 of the Trade-Mark Rules provides:

The proceedings, on oppositions, and on applications for cancelation, shall follow, as nearly as practicable, the practice, in interferences between applications for patents.

To grant appellant's motion and permit him to institute a new proceeding would not only work a hardship upon his opponent, but would add an unnecessary burden upon this Office. The burden of this proceeding is indicated to some extent by the fact that this is the fourth time the present case has been before the Commissioner on interlocutory appeal or petition by Outcault. Outcault desires the benefit of additional testimony. His time for taking testimony was extended on various occasions, and it would appear that he has had ample opportunity in the present case and without resorting to a new proceeding to make a satisfactory showing if he has good reasons to offer for his failure to take the testimony within the time originally assigned or the several extensions thereof.

The decision of the Examiner of Interferences is believed to indicate the proper practice to be pursued in this Office, and it is accordingly affirmed.

APPLICATION-DRAWING.

EX PARTE MEALUS.

APPLICATION FOR PATENT.

Decided September 1, 1908.

136 O. G., 438.

The conclusion of the chief draftsman as to whether or not drawings forming a part of the application for patent shall be accepted will not be

disturbed unless there is such palpable abuse of discretion on his part as would warrant the exercise of the supervisory authority of the Commissioner.

ON PETITION.

HAY-LOADER.

Messrs. Robinson, Martin & Jones for the applicant.

BILLINGS, Acting Commissioner:

This is a petition that the requirement that new drawings be furnished be withdrawn. The record shows that the chief draftsman refused to accept the drawing upon the ground that the lines were rough and the free-hand surface-shading objectionable.

It is urged by the petitioner that the drawings have solid lines which adapt them to be successfully reproduced by photographic processes, that they are of good artistic merit and sufficiently illustrate the invention, and, furthermore, that the drawings are of the nature requiring a large amount of free-hand work in their reproduction, which is necessarily more or less imperfect.

Rules 49 to 55 of the Rules of Practice state with great particularity the character of drawing which is required as part of an application for patent. As stated in Rule 51, three editions of copies of patent drawings are printed and published which necessitate great reductions in the scale of the drawing. It is therefore necessary that drawings which are to form a part of an application be of a uniform standard of excellence and that strict compliance with the rules relating to drawings be required. In order that uniformity, both in the character of the drawings and their artistic merit, may be obtained, all drawings are submitted to the chief draftsman. His conclusion as to whether or not the drawings should be accepted will not be disturbed unless there is such palpable abuse of his discretion as would warrant the exercise of the supervisory authority of the Commissioner. In the present case there appears to be no abuse of this discretion. On the contrary, the criticisms of the chief draftsman are clearly well founded and must be insisted upon. The petition is denied.

EX PARTE MEIER.

APPLICATION FOR PATENT.

Decided July 22, 1908.

APPLICATION-DATE OF FILING.

136 O. G., 657.

Where by reason of a foreign patent it was necessary that the applicant file his application in the United States Patent Office not later than March 15, 1908, and application papers were deposited in the mail at Paterson,

N. J., on Friday, March 13, 1908, at five o'clock, but did not reach the Patent Office until Monday, March 16, Held that the Commissioner is without authority to give the application the date of March 14, 1908, as requested.

ON PETITION,

MACHINE FOR SECURING TAGS TO RIBBONS AND LACES.

Mr. John W. Steward for the applicant.

MOORE, Commissioner:

This is a petition that the filing date of the above application be changed from March 16, 1908, to March 14, 1908.

It appears that applicant has a patent granted in Switzerland prior to the filing of his United States application on an application filed March 15, 1907. Consequently it was necessary for him to file his application in the United States Patent Office not later than March 15, 1908, in order that his foreign patent might not constitute a bar to the grant of a patent in this country under the provisions of section 4887 of the Revised Statutes.

The application papers were received in the Patent Office by mail on the morning of March 16, 1908. The Commissioner is clearly without authority to extend the year fixed by the statute to cover an application filed March 16, 1908, or a year and a day after the filing date of the foreign application.

Applicant's attorney has filed an affidavit to the effect that he received the application papers, properly executed, at his office in Paterson, N. J., in the forenoon of Friday, March 13, 1908, and that he inclosed said papers in an envelop addressed to the "Hon. Commissioner of Patents, Washington, D. C.," and deposited it in the United States mail before 5.30 o'clock of the same day, and that the papers should have reached the Patent Office on March 14, 1908.

These papers, however, were not received in the Patent Office until the morning mail of March 16. Unfortunately for applicant March 15 was Sunday, and if the papers reached the post-office in Washington on Sunday or on Saturday too late for the 12.30 p. m. delivery they would not reach the Patent Office until Monday morning, for the reasons stated in the Commissioner's decision ex parte Dempsey (ante, 39; 132 O. G., 1072) and the decision of the Secretary of the Interior ex parte Cannon (C. D., 1901, 263; 94 O. G., 2165.)

It was held by the Secretary of the Interior in the cases of Dempsey (post, 301; 132 O. G., 1074) and Cannon, supra, that the postal authorities are not the agents of the Government for the collection. of Patent Office fees. For similar reasons application papers in the

custody of the postal authorities cannot be held to be on file in the Patent Office.

Applicants and attorneys should take note of the fact that the last regular mail delivery at the Patent Office is at about noon each day, and it would seem to be an act of prudence, where the matter is of vital importance, as in the present case, and it is doubtful whether the papers will reach the Patent Office in time by the regular mail, to employ some other agency or at least to affix a special-delivery stamp to the envelop.

For the reasons stated above and in the similar case of ex parte Ravelli (C. D., 1907, 260; 130 O. G., 982) the petition must be denied.

EX PARTE BECHSTEIN.

APPLICATION FOR REGISTRATION OF TRADE-MARK.

Decided August 26, 1908.

136 O. G., 657.

TRADE-MARKS-APPLICATION-DECLARATION.

The requirements of the sworn declaration prescribed by Rule 32 of the Trade-Mark Rules for marks sought to be registered under the ten-years proviso of section 5 of the act of 1905 must be complied with. The filing of a certified copy of registration in a foreign country for a stated period does not constitute evidence of exclusive use of the mark for ten years next preceding February 20, 1905, and is not the equivalent of the sworn statement of the applicant as to exclusive use during that period.

ON PETITION.

TRADE-MARK FOR PIANOFORTES.

Messrs. Frothingham & Wentworth for the applicant.

BILLINGS, Acting Commissioner:

This is a petition that the Examiner be directed to waive the requirement of the formal declaration prescribed by Rule 32 of the Trade-Mark Rules relating to "ten-year" marks.

The trade-mark sought to be registered is admittedly the name of an individual, and therefore not registrable as a technical trade-mark. Instead, however, of filing a declaration averring that the trade-mark has been in actual and exclusive use by the applicant for ten years next preceding the passage of the Trade-Mark Act of 1905 the applicant has relied upon the certified copy of his certificate of registration in Great Britain showing that "The user claimed for the said trade-mark is since thirteen years prior to August 13th, 1875," and it is contended that this certificate should be accepted as having the