Corrington, the junior party, took his testimony. Turner took no testimony, but upon the day his time for taking testimony expired he filed the above declaration of abandonment. Turner's abandonment does not appear to be conditional or contain limitations stating that it is to be taken otherwise than absolute, and it does not, therefore, come within the class condemned for this reason by the Commissioner in Gabrielson v. Felbel, (C. D., 1906, 108; 121 O. G., 691.) It is believed, however, to be objectionable in form. A statement of the reasons why the claims are abandoned is uncalled for and can serve no purpose other than to cast a cloud upon the patent that may issue to the opponent. If such a paper is held to be a proper declaration of abandonment upon which to base an award of priority under Rule 125, it might appear to a prospective purchaser of the invention or to one unfamiliar with such matters that the Patent Office in giving effect to the abandonment indorsed the reasons upon which it is alleged to be based. If a party wishes to avail himself of the privilege of terminating the interference by a declaration of abandonment of the invention, it is believed to be in the interest of good practice to require him to file a declaration of abandonment free from the above objections. For this reason the Examiner of Interferences properly held that Turner's declaration in its present form should not be made the basis of an action in the interference. It is not considered, however, that the Examiner of Interferences was warranted in ordering the physical removal of the paper from the interference files. Corrington urges consideration of so much of his appeal as relates to suspension of proceedings and permission to take additional testimony as to counts 6 and 7 only in case the decision of the Examiner of Interferences refusing to base judgment on Turner's declaration of abandonment should be reversed. In view of the above holding these matters do not call for consideration. It may be stated, however, that no good reason appears for granting Corrington's request for permission to take additional testimony. Considering Corrington's request for sufficient time to permit him to print and file his testimony forty days before the final hearing, (Rule 162,) it appears from the decision of the Examiner of Interferences that he will postpone the final hearing if it should be necessary, and at the hearing Turner's counsel stated that he would consent to a reasonable extension of time. The decisions of the Examiner of Interferences are affirmed to the extent indicated. TRADE-MARKS-CANCELATION-SECTION 13 OF THE TRADE-Mark Act. The Commissioner has no authority to cancel a certificate of registration of a trade-mark except in accordance with the provisions of section 13 of the Trade-Mark Act of February 20, 1905. PETITION FOR CANCELATION. TRADE-MARK FOR WHEAT-FLOUR. Messrs. McGowan, Serven & Mohun for Case. MOORE, Commissioner: This is a petition by Clarence O. Case for the cancelation of certificate of registration No. 32,504, granted to James Quirk May 26, 1908, covering a trade-mark for wheat-flour, comprising the word "Evangeline." The application of James Quirk was filed January 30, 1908. An application for registration claiming the same mark for the same goods was filed by petitioner on February 17, 1908. Although both cases were pending at the same time, a certificate was granted to Quirk without an interference having been first declared, evidently through an oversight by the Office. On June 16, 1908, an interference was declared between the application and the registration, times for taking testimony have been set, and final hearing has been fixed for January 4, 1909. Petitioner sets forth that immediately after registration was granted the owners of the registered mark began to send out threatening letters to the trade, and particularly to the customers in whom petitioner is interested, notifying them of the registration and warning them against the use of the brand “Evangeline," wherefore petitioner has suffered and is suffering great damage. The allegation that such letters have been sent to the trade has not been denied. Petitioner urges that inasmuch as this mark was registered through mistake operating to his injury the Office should correct such mistake by canceling the registration. Section 13 of the Trade-Mark Act of February 20, 1905, provides that the Commissioner may cancel a registered mark, but specifies certain procedure to be followed. Peti tioner recognizes the fact that the relief prayed for cannot be granted under this section of the statute upon the present petition, as he has not complied with its provisions, but urges that under section 26 of the act the Commissioner of Patents is authorized to make rules and regulations not inconsistent with law, for the conduct of proceedings in reference to the registration of trade-marks provided for by this act― and that under this power to make rules and regulations he has power to order a cancelation of a registered mark; but this section of the statute is limited to the making of rules and regulations with reference to the "registeration" of trade-marks. The cancelation of a registered mark certainly cannot be considered an act in reference to the registration of a mark, but is an act in reference to a mark which has already been registered. I am of the opinion that the terms of the statute indicate clearly not only that the Commissioner's power is limited to rules relating to procedure, but that it is limited to questions arising before the grant of a certificate of registration, and not to any question arising in connection with a mark that has been registered in accordance with the law. The petition is denied. EX PARTE TALIAFERRO. Decided September 28, 1908. 1. ASSIGNMENT OR LICENSE-RESERVATION-LICENSE. 66 An instrument purporting to convey an undivided one-sixth of all right, title and interest" in an invention, but reserving to the assignor the sole right to manufacture and sell the invention and providing that the assignee "shall not so manufacture and sell" except by assignor's consent, conveys nothing more than a right to use the invention. It is a mere license and not an assignment and is not such an interest as would warrant the issuance of the patent to the grantee, notwithstanding the request in such instrument that the patent so issue. 2. PATENT SHOULD NOT ISSUE TO A MERE LICENSEE. The Patent Office should not issue a patent to an alleged assignee where the inventor has reserved to himself the exclusive right to make or use or sell the invention covered by his application or any combination of these elements which limits the interests of the alleged assignee to an interest in the invention less than that defined as an assignment by the Supreme Court of the United States in the decision Waterman v. McKenzie, (C. D., 1891, 320; 54 O. G., 1562; 138 U. S., 252,) which defined an assignment to be either (1) the whole patent, comprising the exclusive right to make, use, and vend the invention throughout the United States, or (2) an undivided part or share of that exclusive right, or (3) the exclusive right under the patent within and throughout a specified part of the United States. BLACKING-MACHINE. Messrs. Munn & Co. for the applicant. MOORE, Commissioner: This case comes before me on reference by the Chief of the Assignment Division for instructions whether to issue a patent jointly to the applicant and his alleged assignee or to the applicant alone. There is upon the assignment records of this Office an assignment by Taliaferro purporting to convey to Harry Spinglar an undivided one-sixth of all right, title and interest in said invention and any improvements thereafter made by him thereon, for the United States. Letters Patent to issue in accordance herewith. The parties hereto agree that Taliaferro shall have sole right to manufacture and sell said invention and said improvements, as an article of merchandise; that Spinglar shall not so manufacture and sell except by Taliaferro's written consent, and that Spinglar shall have right to sell the whole or any part of his interest without Taliaferro's consent. The Chief of the Assignment Division is of the opinion that this alleged assignment comprises nothing more than a license and does not convey such interest in the invention as to warrant the issuance of the patent to Taliaferro and Spinglar in the manner requested in said assignment. He is, however, of the opinion that he is controlled by the decision in ex parte Rowand (C. D., 1905, 63; 114 O. G., 2091) to advise the issuance of the patent in the manner requested. Section 4895, Revised Statutes, provides in part that— Patents may be granted and issued or reissued to the assignee of the inventor or discoverer; but the assignment must first be entered of record in the Patent Office upon compliance with certain stated conditions. In the case of Waterman v. McKenzie et al. (C. D., 1891, 320; 54 O. G., 1562; 138 U. S., 252) the Supreme Court of the United States defined the extent of interest required to be conveyed by an assignment in the following language: The patentee or his assigns may, by instrument in writing, assign, grant, and convey either (1) the whole patent, comprising the exclusive right to make, use, and vend the invention throughout the United States; or (2) an undivided part or share of that exclusive right; or (3) the exclusive right under the patent within and throughout a specified part of the United States. (Id., sec. 4898.) A transfer of either of these three kinds of interests is an assignment, properly speaking, and vests in the assignee a title in so much of the patent itself, with a right to sue infringers-in the second case, jointly with the assignor; in the first and third cases, in the name of the assignee alone. Any assignment or transfer, short of one of these, is a mere license, giving the licensee no title in the patent and no right to sue at law in his own name for an infringement. (Id., sec. 4919; Gayler v. Wilder, 10 How., 477, 494, 495; Moore v. Marsh, 7 Wall., 515.) It is obvious that the instrument above quoted, which not only reserves to Taliaferro the "sole right to manufacture and sell the invention," but expressly provides that— Spinglar shall not so manufacture and sell except by Taliaferro's written consent conveys nothing more than the right to use the invention. It does not vest in the alleged assignee any one of the three kinds of interest which are essential to an assignment as defined by the Supreme Court of the United States in the decision above quoted and does not therefore constitute such an interest as would warrant the issuance of the patent in accordance with the request contained in such instrument. In the case of ex parte Rowand it appears that the reservation comprised merely the privilege of the assignor to make, use, and sell the device described in the application for patent or in the patent issued thereon for a particular stated purpose and did not reserve the exclusive right to make, use, or sell the invention. The present case differs from ex parte Rowand in that Taliaferro has reserved the exclusive right to make and sell the invention. The circumstances of this case are more nearly analogous to those in the case of ex parte Rosback, (C. D., 1899, 202; 89 O. G., 705,) in which former Commissioner Duell held that where in two instruments which purported to be assignments Rosback reserved to himself the exclusive right to use the invention in the manufacture of book-stitching machines, the instrument amounted to nothing more than a license and did not convey such an interest in the invention and the patent as would authorize the Commissioner to issue the patent to the alleged assignee. It is believed that under the authorities above cited the Office should not issue a patent to an alleged assignee where the inventor has reserved to himself the exclusive right to make or use or sell the invention covered by his application or any combination of these elements which limits the interest of the alleged assignee to an interest in the invention less than that defined as an assignment by the Supreme Court of the United States in the decision Waterman v. McKenzie et al. above quoted. It is directed that the patent in this case be issued to Taliaferro, the inventor. EX PARTE HARTLEY. Decided September 28, 1908. 136 O. G., 1767. 1. PUBLIC USE-EVIDENCE-COMMISSIONER'S DECISION INSTITUTING PROCEEDINGS NOT CONCLUSIVE. The fact that the Commissioner holds certain ex parte affidavits filed in support of a petition for the institution of public-use proceedings to be |