APPEAL from Examiners-in-Chief. MAGNET-WINDING MACHINE. Messrs. Barton, Tanner & Folk for the appellant. MOORE, Commissioner: This is an appeal from a decision of the Examiners-in-Chief refusing the allowance of the following claims: 1. In a magnet-winding machine for insulated wire, the combination with a spool-rotating mechanism, of a guiding-roller for applying the wire to the spool said roller having a rim of hard rubber with a groove in the central portion of its periphery through which the wire is led to the spool, the periphery of said roller adjacent to said groove being adapted as the roller is advanced in either direction to engage one or more of the convolutions last laid, a carriage for the roller arranged to press the same continuously against the spool, and traverse mechanism for reciprocating said carriage to move the roller to and fro along the spool. 2. A guiding-roller for winding-machines comprising a central body portion of metal and a rim of hard rubber, said rim having a number of grooves in its periphery, adapted to fit the convolutions of wire on a spool. The references are: Manchester and Bolen, January 5, 1875, No. 158,427; Hill, October 22, 1889, No. 413,447. The gist of the alleged invention lies in the substitution of a roller covered with hard rubber for the metal traversing roller previously employed in winding-machines for winding wire or thread onto a spool. The view taken by the lower tribunals that this substitution did not amount to invention is believed to be correct. That the substitution of one material for another may involve invention cannot be questioned. One of the latest cases on this point is that of George Frost Company v. Cohn, reported in 119 Fed. Rep., 505, wherein the Circuit Court of Appeals for the Second Circuit, in a well-considered opinion, held that the substitution of a rubber button or of a button having a rubber shank for the metal button of the prior art amounted to invention. Appellant seeks to bring this case within the reasoning of that decision; but it is believed that the conditions are entirely different and warrant the opposite conclusion. In that case the prior art showed that for fifteen years prior to the production of the invention there under consideration inventors had sought to overcome the objections incident to the old construction and that their efforts were unsuccessful. It appears from an affidavit filed by appellant that he is the first to produce a commercially successful automatic machine to wind fine insulated wire onto spools; that in adapting to his purpose the machines for winding thread and yarn of the prior art having metal guide-rollers he found that the metal roller injured the insulation. He thereupon used a rubber69025-H. Doc. 1349, 60-2—17 rimmed roller, by which the objection was overcome. If the metal roller was so hard as to cut the insulation, it would seem but an obvious thing to substitute therefor rubber, whose properties were well known. That the remedy is an obvious one seems to be borne out by the affidavit referred to, which indicates that the proper remedy suggested itself as soon as the difficulty was observed. As bearing on the question of patentability, appellant has submitted affidavits tending to show that many machines embodying his invention have been built and are now used in the factory of his assignee. Evidence of this character is considered only when the question of patentability is in doubt. As I am of the opinion that the question here presented is free from doubt, such affidavits need not be further considered. The decision of the Examiners-in-Chief is affirmed. RIDGWAY V. TILYOU. Decided October 28, 1908. 137 O. G., 979. INTERFERENCE-PRELIMINARY STATEMENT—AMENDMENT. A motion to amend a preliminary statement will not be granted in the absence of a valid ground therefor, even though the proposed amendment does not seek to change the sequence of dates set up originally by the respective parties. APPEAL ON MOTION. AMUSEMENT APPARATUS. Messrs. Crosby & Gregory for Ridgway. BILLINGS, Acting Commissioner: This is an appeal by Ridgway from a decision of the Examiner of Interferences denying his motion to amend his preliminary state ment. The affidavits filed with the motion and the brief of counsel have been carefully considered, and no reason is seen for holding that the Examiner of Interferences was in error in his conclusion that the alleged mistake was one of law, and therefore not such as to entitle Ridgway to amend his statement. (Miller v. Wallace, C. D., 1907, 391; 131 O. G., 1689.) Furthermore, if the mistake was, as contended by Ridgway, one of fact and not of law it was not such a mistake as would justify the granting of the motion, since Ridgway was in possession of all the facts which he now desires to set up at the time he made his original statement. (Soley v. Peck et al., C. D., 1903, 259; 105 O. G., 1262.) It is contended on behalf of Ridgway that, since the sequence of the dates set up by the two parties is not changed in the proposed amendment, the motion should be granted in order that no presumption unfavorable to Ridgway may be drawn due to the fact that the dates which he proves will not be the same as those which he alleged. The mere fact that the sequence of dates is unaltered is not of itself ground for granting the motion. Moreover, the discrepancy between the original statement and the proofs would exist whether the motion was granted or not, and the bringing of the motion would tend as much to avoid any unfavorable presumption being drawn therefrom in the one case as in the other. The decision of the Examiner of Interferences is affirmed. LOWDEN v. ALLEN BROTHERS COMPANY. Decided October 30, 1908. 137 O. G., 979. TRADE-MARKS—INTERFERENCE-PRIORITY. In a trade-mark interference which involves only applications for registration if no testimony is taken priority of adoption and use will be rendered in favor of the senior party. APPEAL from Examiner of Interferences. TRADE-MARK FOR CANNED GOODS. Mr. Arthur P. Greeley for Lowden. Mr. John W. Battin for Allen Brothers Company. BILLINGS, Acting Commissioner: This is an appeal by Lowden from the decision of the Examiner of Interferences awarding priority of adoption and use to Allen Brothers Company and holding that it was entitled to the registration of the mark for which it had made application. The grounds of appeal are as follows: 1. The Examiner in charge of interferences erred in finding that Allen Brothers Company is entitled to the registration for which it has made application. 2. The Examiner in charge of interferences erred in awarding priority of adoption and use of the trade-mark in issue to Allen Brothers Company. 3. The Examiner in charge of interferences erred in deciding the aboveentitled case in favor of Allen Brothers Company. No reasons were given, either orally or in brief, why the Examiner of Interferences erred in his decision, and there being no testimony this fact of itself would be sufficient ground for affirming the decision. It may be stated, however, that the decision of the Examiner of Interferences was based on the well-settled practice of the Office that where two applications for registration are in interference the burden of proof is upon the junior party to establish a date of adoption and use. Where the junior of two applicants takes testimony and establishes adoption of the mark in issue and continuous use subsequent thereto and the senior party takes no testimony, a decision is rendered in favor of the junior party, whether such date be prior to the senior party's filing date or not; but where neither party takes testimony a decision cannot in such event be rendered in favor of the junior party, since he has not overcome the burden upon him of establishing a date of adoption and use, the ex parte oath in his application not being sufficient to establish such date. The decision of the Examiner of Interferences is affirmed. BLACKMORE v. HALL. Decided October 23, 1908. 137 O. G., 1237. INTERFERENCE-ADMISSION OF TESTIMONY FILED LATE-APPEAL. No appeal will be entertained from a decision of the Examiner of Interferences granting a motion to admit testimony the printed copies of which were not filed within the time required by the rule. ON PETITION. METHOD OF PRODUCING ALUMINIUM. Mr. J. R. Nottingham for Blackmore. Mr. Joseph B. Hall per se. MOORE, Commissioner: This case comes up on petition by Hall from the decision of the Examiner of Interferences granting Blackmore's motion to admit and consider his testimony, and on appeal by Hall from his decision denying Hall's motion for judgment. Hall also states that he appeals from the Examiner of Interferences's tacit ignoring of his motion to have Blackmore produce the books of the concern which printed his testimony. It appears that Blackmore did not file the printed copies of his testimony until the day set for final hearing. He thereafter made a motion to have the testimony entered and considered, and Hall made a motion for judgment on the record and a motion that Blackmore be required to produce the books of the concern which printed his testimony as proof that they were printed and delivered to him more than ten days before the day set for final hearing, as alleged. The Examiner of Interferences granted Blackmore's motion and denied Hall's. It is well settled that no appeal lies from a decision of the Examiner of Interferences denying a motion for judgment on the record. (Lemp v. Randall and Bates v. Thomson, C. D., 1906, 42; 120 O. G., 905.) It is also settled that no appeal will be allowed from his decision setting aside a record judgment and fixing a time for final hearing or from a decision refusing to suppress testimony. (O'Brien V. Gale v. Zimmer v. Calderwood, ante, 74; 133 O. G., 514; Deitsch Brothers v. Loonen, C. D., 1907, 413; 131 O. G., 2146.) For similar reasons to those on which these decisions are based it is thought no appeal should be allowed from the decision of the Examiner of Interferences admitting testimony which was not filed within the time required by the rule. As to the Examiner of Interferences's apparent failure to decide Hall's motion to require Blackmore to produce the books of the printer, since this was merely for the purpose of showing that Blackmore's excuse for the delay in filing the printed copies of his testimony was not sufficient, the action of the Examiner of Interferences in granting Blackmore's motion was a holding that the excuse offered by Blackmore for his delay was sufficient and was in effect a denial of Hall's motion that Blackmore be required to furnish further proof on this point. It is therefore immaterial that the decision did not specifically state that this motion of Hall's was denied. The petition and appeals are dismissed. EX PARTE SOCIÉTÉ POUR LE COMMERCE DE THE K & C POPOFF FRÈRES. Decided November 17, 1908. 137 O. G., 1237. TRADE-MARKS-COAT-OF-ARMS OF A FOREIGN NATION. A trade-mark comprising the coat-of-arms of a foreign country is not registrable under the provisions of section 5 of the Trade-Mark Act of 1905, even though registration of said mark has been allowed in such foreign country. ON APPEAL. TRADE-MARK FOR TEA. Messrs. Munn & Co. for the applicants. MOORE, Commissioner: This is an appeal from the decision of the Examiner of TradeMarks refusing to register a trade-mark. |