We concur in this view. No claim is made that it was necessary to design new machinery to complete the cover after the inflation of the ball. The prior art suggested the idea of knitting together the edges of the slit, and that idea was adopted. Any one skilled in the art, and who desired to produce a cloth or knitted cover for tennis-balls, would have had no difficulty in producing the result found in the rejected claims, had he consulted the references. Two of these references contain the idea of covering inflated rubber balls with a crocheted or knitted cover. Another contains the idea of inserting a deflated rubber ball in a cover, inflating the ball, and then closing the aperture. The decision of the Commissioner was right, and is, therefore, affirmed. The clerk of the court will certify this opinion and the proceedings in this court to the Commissioner of Patents according to law. Affirmed. [Court of Appeals of the District of Columbia.] E. MCILHENNY'S SON v. NEW IBERIA EXTRACT OF TABASCO PEPPER COMPANY, LIMITED. Decided February 4, 1908. 133 O. G., 995; 30 App. D. C., 337. 1. TRADE-MARKS-CANCELATION-PLeading-SUFFICIENCY OF PETITION. As the statute providing for the cancelation of registered trade-marks (act of Feb. 20, 1905, sec. 26, 33 Stat. L.) does not contemplate that any one may petition the Commissioner to cancel a trade-mark regularly registered, but it does provide that any one who "shall deem himself injured' may do so, the petition for cancelation must contain a statement of fact on this jurisdictional question sufficiently full to show that the petitioner has been injured by the registration, and this fact must not be left to conjecture, but must affirmatively appear, and where such a statement of fact is lacking the petition is demurrable. 2. SAME-SAME-SAME-SAME. An averment in a petition for the cancelation of the registered trademark "Tabasco" for pepper-sauce that petitioner has used such trademark is not sufficient, for the reason that unless the word has been used in the same business no injury contemplated by the statute would have followed. 3. SAME-SAME-SAME-SAME. In a petition for the cancelation of a registered trade-mark a general averment that the registration "has been much to the prejudice, damage, and loss" of the petitioner unsupported by averments of facts is merely the conclusion of the pleader and is not a sufficient averment of damage to give petitioner a standing in a cancelation proceeding. Mr. Melville Church and Mr. J. B. Church for the appellant, 60025-H. Doc. 1349, 60-2▬▬▬▬22 ROBB, J.: This is an appeal from a decision of the Commissioner of Patents overruling a general demurrer filed by appellant to a petition filed by appellee for the cancelation of the word "Tabasco," which appellant had registered in the Patent Office as a trade-mark for pepper sauce. The petition demurred to was filed under the provisions of section 13 of the act of February 20, 1905, (33 St. at L., pt. 1742,) which reads as follows: That whenever any person shall deem himself injured by the registration of a trade-mark in the Patent Office he may at any time apply to the Commissioner of Patents to cancel the registration thereof. The Commissioner shall refer such application to the Examiner in charge of interferences, who is empowered to hear and determine this question, and who shall give notice thereof to the registrant. If it appear after a hearing before the Examiner that the registrant was not entitled to the use of the mark at the date of his application for registration thereof, or that the mark is not used by the registrant or has been abandoned, and the Examiner shall so decide, the Commissioner shall cancel the registration. Appeal may be taken to the Commissioner in person from the decision of Examiner of Interferences. The only averments found in the petition as to the right of the petitioner to apply for a cancelation of the trade-mark are contained in the fifth and sixth paragraphs, and read as follows: 5. That the corporation of your petitioner, as well as others, had used the word "Tabasco" as a trade-mark in trading throughout the United States and with foreign nations generally for several years prior to the registration of this mark. 6. The registration of said word "Tabasco" as a trade-mark by the firm of E. McIlhenny's Son has been much to the prejudice, damage and loss of your petitioner and his corporation, organized under the laws of Louisiana. Subsequently certain affidavits were filed by the petitioner, in which its interests more fully appear, but these affidavits were not referred to in the petition, and, of course, form no part thereof; (Robinson Tobacco Co. v. Phillips, In Equity, 20 Blatch., U. S., 569; Hiatt v. Goblt, 18 Ind., 494; Howard Co. v. Water Lot Co., 53 Ga., 689; Statham v. Life Insurance Co., 45 Miss., 581; Moses & Co. v. Brodie, 1 Tenn. Ch., 397; 8 Enc. Pl. & Pr., p. 740.) Pursuant to the authority vested in him by section 26 of said act of February 20, 1905, the Commissioner in notifying appellant of the filing of said petition for cancelation, said: The practice of the United States equity courts should be followed in plead ings. The right of the petitioner to intervene was dependent upon a showing of interest. The statute does not contemplate that any one may petition the Commissioner to cancel a trade-mark regularly registered, but it does provide that any one who "shall deem himself injured" may do so. The petition, therefore, must contain a statement of fact on this jurisdictional question sufficiently full to show that the petitioner has been injured by the registry of the mark he seeks to have canceled, and this fact must not be left to conjecture but must affirmatively appear. As was said by Mr. Justice Story, in Harrison v. Nixon, (9 Peters, 503 :) Every bill must contain in itself sufficient matters of fact, per se, to maintain the case of the plaintiff: so that the same may be put in issue by the answer, and established by the proofs. The proofs must be according to the allegations of the parties; and if the proofs go to matters not within the allegations, the court cannot judicially act upon them as a ground for its decision, for the pleadings do not put them in contestation. The allegata and the probata must reciprocally meet to conform to each other. The petition of the appellee does not contain an averment that it had used the word "Tabasco" as a trade-mark for pepper-sauce. The averment that it had used the word as a trade-mark is not sufficient for the obvious reason that unless the word had been used in the same business as that in which it was used by appellant, no injury contemplated by the statute would have resulted, and no right to intervene would have followed. The averment in the sixth paragraph of the petition is merely a conclusion of the pleader unsupported by the facts previously set out. Such an allegation is not sufficient; (St. Louis Ry. Co. v. Johnson, 133 U. S., 577; Story on Equity Pl., sec. 257.) The demurrer should have been sustained, and the decision of the Commissioner of Patents is, therefore, reversed. The clerk of the court will certify this opinion, and the proceedings of the court in the premises to the Commissioner of Patents according to law. Reversed. [Court of Appeals of the District of Columbia.] IN RE EDISON. Decided February 4, 1908. 133 O. G., 1190; 30 App. D. C., 321. PATENTABILITY-SECOND APPLICATION-RES ADJUDICATA. Where an applicant after having been refused a patent by the Commissioner on appeal presented a new application containing claims differing from those of the earlier application in phraseology rather than in meaning, Held that such differences or any changes merely broadening claims that have been once determined do not affect the conclusiveness of the former adjudication and that the subject-matter was res adjudicata. Mr. F. L. Dyer for the appellant. Mr. F. A. Tennant for the Commissioner of Patents. SHEPARD, J.: This is an appeal from the Commissioner of Patents refusing an application, filed August 1, 1903, for a patent for an improvement in screening-plates, having the following claims: 1. As a new article of manufacture, a screen having openings formed in a plate of minimum thickness, less than the width of said openings and sufficient only to offer proper support to the material passed over the same, substantially as for the purposes set forth. 2. As a new article of manufacture, a screen having slots formed in a plate of minimum thickness, less than the width of said slots, and sufficient only to offer proper support to the material passed over the same, substantially as and for the purposes set forth. 3. As a new article of manufacture, a screen having openings formed in a plate of minimum thickness, less in width than said openings, sufficient only to offer proper support to the material passed over the same, and having a casehardened screening-surface and a malleable central portion, substantially as and for the purposes set forth. The record shows that the same applicant had filed, on June 29, 1899, an application for the allowance of a patent for an improvement in screening-plates, containing the following claims: 1. As a new article of manufacture, a very thin metal plate having screeningorifices therein of greater width than the thickness of said plate, substantially as set forth. 2. As a new article of manufacture, a screening-plate made of hardened metal of extreme thinness and with orifices formed therein of a greater width than the thickness of said plate, substantially as set forth. 3. As a new article of manufacture, a metal plate having a hardened screeningsurface but with a malleable central portion, said plate being of extreme thickness and having orifices formed therein of greater width than the thickness of said plate, substantially as set forth. 4. As a new article of manufacture, a screening-plate having hardened surfaces and a malleable central portion, said plate having elongated screeningorifices formed therein, substantially as set forth. 5. As a new article of manufacture, a very thin metal plate having screeningslots therein of greater width than the thickness of said plate, substantially as set forth. 6. As a new article of manufacture, a screening-plate made of hardened metal of extreme thinness, and with slots formed therein of greater width than the thickness of said plate, substantially as set forth. 7. As a new article of manufacture, a metal plate having a hardened screeningsurface but with a malleable central portion, said plate being of extreme thinness and having slots formed therein of greater width than the thickness of said plate, substantially as set forth. 8. As a new article of manufacture, a screening-plate having hardened surfaces and a malleable central portion, said plate having elongated screeningslots formed therein, substantially as set forth. This earlier application was rejected by the Primary Examiner, on February 15, 1902, as unpatentable; reference being made to several former patents for screening-plates. This decision was affirmed by the Examiners-in-Chief, and on appeal therefrom to the Commis sioner their decision was affirmed May 26, 1903. No appeal was prosecuted from that decision. On September 19, 1905, the Primary Examiner rejected the present application on the ground that the subject-matter was the same as that of the former rejected application, the final determination of which was res adjudicata. His opinion was that the claims 1, 2, and 3 were substantially the same as claims 1, 5, and 3 of the former application. The Examiners-in-Chief affirmed this decision, but, in addition, held that the claims were unpatentable in view of the state of the prior art. The Commissioner affirmed their decision on February 28, 1907, and therefrom this appeal has been taken. It is unimportant to consider the question of patentability, as we agree with the tribunals of the Patent Office in the opinion that the final decision in the first application is conclusive. (In re Barratt's Appeal, C. D., 1899, 320; 87 O. G., 1075; 14 App. D. C., 255.) Nor do we consider it necessary or important to compare and discuss the resemblance between the claims of the respective applications. This has been carefully done in the several decisions of record in the Patent Office. Referring thereto and to the respective claims heretofore set out, we think it sufficient to say that we adopt the statement in the Commissioner's decision that: Claims 1, 2, and 3, which are now presented, differ from claims 1, 5, and 3, respectively, of the earlier application in phraseology rather than in meaning. Such differences, or any changes merely broadening claims that have been once determined do not affect the conclusiveness of the former adjudication. (Horine v. Wende, C. D., 1907, 615; 129 O. G., 2858; 29 App. D. C., 415, 426; see also Blackford v. Wilder, C. D., 1907, 491; 127 O. G., 1255; 28 App. D. C., 535.) The decision is right and will be affirmed. It is so ordered, and that the clerk certify this decision to the Commissioner of Patents. in the manner required by the law. Affirmed. [Court of Appeals of the District of Columbia.] WORCESTER BREWING CORPORATION v. RUETER & COMPANY. Decided February 18, 1908. 133 O. G., 1190; 30 App. D. C., 428. 1. TRADE-MARKS-DESCRIPTIVE-" STERLING." The word Sterling" as a trade-mark for ale or for any other kind of goods is descriptive of the quality of the articles on which it is used, as it denotes that the article is genuine, pure, and of superior quality, and it is therefore ineligible for registration as a technical mark. |