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ON PETITION.

PRINTING-MACHINE.

Mr. William H. Babcock for Brown.

Messrs. Bates, Fouts & Hull for Gammeter.

MOORE, Commissioner:

This is a petition that the Examiners-in-Chief be instructed to dismiss the appeal of Brown from the record judgment of the Examiner of Interferences, holding that since the allegation of conception in Brown's preliminary statement failed to overcome the filing date of Gammeter's application Gammeter was the prior inventor of the subject-matter in issue.

It is urged on behalf of this petition that inasmuch as there can be no dispute as to the date of Gammeter's application and the date of conception alleged in Brown's preliminary statement no grounds exist for such appeal; that Brown is not entitled to urge that Gammeter has no right to make the claims in issue or that the issue is unpatentable, which are the grounds set forth in his reasons for appeal to the Examiners-in-Chief.

The present appeal purports to be taken under section 4909 of the Revised Statutes from the final decision of the Examiner of Interferences upon the question of priority of invention. Whether the reasons assigned in behalf of this appeal are sufficient to confer jurisdiction upon the Examiners-in-Chief is a question which should be presented before that tribunal in the first instance.

It is well settled that the supervisory authority of the Commissioner will be exercised only to correct a manifest error upon the part of a lower tribunal or in cases where there is no adequate remedy provided by the rules. Inasmuch as the applicant has presented no motion before the Examiners-in-Chief to dismiss the appeal pending before them, and since appeal lies to the Commissioner from the decision of the Examiners-in-Chief if the case is decided by them, there is clearly no reason for invoking the supervisory authority of the Commissioner at this time.

The petition is dismissed.

LARKIN COMPANY v. PACIFIC COAST BORAX COMPANY.

TRADE-MARK INTERFERENCE.

Decided July 23, 1907.

132 O. G., 679.

1. TRADE-MARKS-INTERFERENCE IN FACT.

An interference in fact exists between the words "Boraxine" and "Boraxaid," since they look alike and sound alike.

2 SAME-MOTION TO DISSOLVE-PRACTICE

Questions cannot be urged on appeal which have not been raised in the motion and passed on below except under circumstances which would warrant supervisory action being taken.

APPEAL ON MOTION.

TRADE-MARK FOR SOAP POWDER.

Messrs. Mason, Fenwick & Lawrence for Larkin Company.
Mr. E. G. Siggers for Pacific Coast Borax Company.

BILLINGS, Assistant Commissioner:

This is an appeal by the Pacific Coast Borax Company from the decision of the Examiner of Trade-Marks refusing to dissolve the above-entitled interference. The motion for dissolution alleged that no interference in fact exists.

The issue of the interference is as follows:

The word "Boraxine" or the word "Boraxaid" for soap powder.

There can be no question but that the goods to which the marks are applied are substantially of the same descriptive properties. The interference was declared under the provisions of section 7 of the act of February 20, 1905, which provides that whenever an application is made for the registration of a trade-mark which so nearly resembles a trade-mark used and owned by another as to be likely to be mistaken therefor by the public the Commissioner may declare an interference as to such trade-marks. On consideration of the two words it is held that the Examiner was right in holding that there was a clear interference in fact, for the reason that the words look alike and sound alike. His ruling is in accordance with that of the Commissioner in ex parte The Dr. Parker Medicine Company, (C. D., 1903, 378; 106 O. G., 1779.) Appellant contends, further, that the word "Boraxine" is descriptive. It is noted, however, that this question was not raised upon the motion. The practice is clear as to this point. Questions cannot be urged on appeal which have not been raised in the motion and passed on below. This practice is well settled in regard to patent interferences, and Trade-Mark Rule 46 states that the practice in trade-mark interferences will follow as nearly as practicable the practice in interferences between applications for patents. The word "Boraxine" is not so descriptive as to warrant supervisory action being taken.

The decision of the Examiner of Trade-Marks is affirmed. 69025-H. Doc. 1349, 60-2-3

RHODES V. RHODES.

PATENT INTERFERENCE.

Decided December 16, 1907.

132 O. G., 680.

INTERFERENCE-TESTIMONY-SUPPRESSION.

Testimony should not be suppressed on account of the failure of a witness to read his deposition before signing the same where it does not appear that such notice was given to the opposite party, as is required by Rule 159.

APPEAL ON MOTION.

PISTON-ROD PACKING.

Mr. John M. Spellman and Messrs. Bacon & Milans for H. P. Rhodes.

Mr. Fred G. Deiterich for J. M. Rhodes.

BILLINGS, Assistant Commissioner:

This is an appeal by John M. Rhodes from the decision of the Examiner of Interferences granting the motion of Hampton P. Rhodes to strike out the deposition of W. D. Jewell offered on behalf of John M. Rhodes. The ground on which this motion was brought was that the requirements of section 3 of Rule 154 were not complied with when Jewell's deposition was taken, the specific requirement to which reference was made being as follows:

The officer shall annex to the deposition his certificate showing

(5) the reading by, or to, each witness of his deposition before he signs the

same.

The notary's certificate contained the following statement:

That the witness, after consultation with J. M. Rhodes' counsel, waived the reading of his deposition before signing the same.

Affidavits were filed in support of the motion, and affidavits were also filed on behalf of J. M. Rhodes. These affidavits set forth affiants' versions as to what occurred at the time of closing Jewell's deposition and whether or not counsel for H. P. Rhodes consented to Jewell's waiving the reading of his deposition.

The Examiner of Interferences held that these affidavits were so contradictory that it could not be presumed from them that there was a verbal agreement that the reading of the deposition be waived, no stipulation to this effect being on record. He therefore granted the motion, because the certificate of the notary showed that the requirements of the rules had not been complied with, citing Rolfe v. Taylor, (C. D., 1904, 333; 111 O. G., 1938.)

It appears from the affidavits filed that counsel for Hampton P. Rhodes was present when Jewell's deposition was closed and when it

was signed; but the record does not show that notice was given that he objected to Jewell's not reading his deposition and that a motion would be made to suppress the testimony on that ground. The motion to strike out was not brought until a month after the testimony was filed in the Office. Rule 159 provides that notice will not be taken of merely formal or technical objections which do not appear to have wrought a substantial injury to the party raising them, and, further, that in case of such injury it must be made to appear that as soon as the party became aware of the ground of objection he gave notice thereof to the Office and also to the opposing party, informing him that unless it be removed he would urge the objection at the hearing. As stated above, no notice whatever appears to have been given either to the Office or to the opposing party. For this reason it is believed that the deposition should not have been suppressed. The decision of the Examiner of Interferences is reversed.

GREENE, TWEED & Co. v. MANUFACTURERS' BELT HOOK Co.

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Where upon motion to suppress evidence on the ground that it is irrelevant the Examiner of Interferences postpones consideration of the question until final hearing, his decision will not be reviewed and reversed upon appeal prior to final hearing except in a clear case of abuse of discretion. (Royce v. Kempshall, C. D., 1905, 461; 119 O. G., 338.)

APPEAL from Examiner of Interferences.

TRADE-MARK FOR BELT-FASTENERS.

Mr. Arthur E. Parsons and Mr. John M. Coit for Greene, Tweed & Co.

Messrs. Dyrenforth, Lee, Chritton & Wiles and Messrs. Dudley, Browne & Phelps for Manufacturers' Belt Hook Co.

BILLINGS, Assistant Commissioner:

This is an appeal by Greene, Tweed & Company from the decision of the Examiner of Interferences denying their motion to expunge from the record certain exhibits filed by the Manufacturers' Belt Hook Company.

A previous motion to expunge these exhibits was dismissed by the Examiner of Interferences on July 20, 1907, on the ground that the question raised could best be considered and disposed of in the consideration of the case upon final hearing.

It subsequently developed, however, at the final hearing that the said exhibits had not been filed, and a motion by the Manufacturers' Belt Hook Company for leave to file them and for a postponement of the final hearing was granted upon appeal upon said company's furnishing proof that it had paid to Greene, Tweed & Company their reasonable costs occasioned by the delay of the Manufacturers' Belt Hook Company to file its testimony within the time set.

Upon admission of said exhibits as stated above Greene, Tweed & Company renewed their motion to expunge them from the record. In denying this motion it appears that the relevancy of these exhibits was not determined by the Examiner of Interferences, for he says that whether they are entitled to any weight" will be determined at the final hearing," and concludes his decision with the statement: "Without in any manner approving the evidence objected to it is decided that the same shall not be struck out at this time."

The appeal therefore appears to properly raise merely the question of whether the Examiner of Interferences was justified in holding that the evidence objected to should not be struck out at the present time and in postponing consideration of the question of the relevancy of the evidence until final hearing. In Royce v. Kempshall (C. D., 1905, 461; 119 O. G., 338) it was held that this matter will not be reviewed and reversed upon appeal prior to final hearing except in a clear case of abuse of discretion. I find no such clear abuse of discretion on the part of the Examiner of Interferences in this case. In his decision on the present motion the Examiner of Interferences set no limit of appeal. In the case of Deitsch Brothers v. Loonen (C. D., 1907, 413; 131 O. G., 2146) it was stated:

It is believed that it will be in the interest of good practice and will work no hardship to the parties if hereafter no appeal be allowed from a decision of the Examiner of Interferences denying a motion to suppress testimony or a motion to require the other party to print exhibits prior to the appeal from his decision on priority rendered after final hearing. The question of the correctness of his decision on the motion can of course be raised on such appeal.

Although this appeal was taken prior to the date of said decision, the reasons which prompted the practice set forth therein are applicable to the present case and afford an additional ground why the decision of the Examiner of Interferences should not be disturbed. The decision of the Examiner of Interferences is affirmed.

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