MOORE, Commissioner:

This is an appeal by Ebersole. from a decision of the Examiners-inChief affirming the decision of the Examiner of Interferences and awarding priority of invention to Durkin on the following issue:

1. A controller provided with a dog jointed to permit its movement in two directions, a series of stops for engaging said dog, and a rack for throwing said dog into engagement with said stops.

2. A controller provided with a dog jointed to permit its movement in two directions, stops for engaging said dog, and serrations for throwing said dog against said stops, the construction being such that the dog will automatically disengage.

3. A controller provided with an oscillating dog having a pivotal action in transverse directions, a supporting and limiting mechanism for said dog, and means for shifting and holding said dog.

4. A controller provided with a revolving supporting and limiting device, an oscillating dog having a universal-joint connection with said device for supporting it and limiting its action, stops for engaging said dog, and serrations for throwing said dog against said stops, said dog being disengaged from said stops automatically.

The invention in issue relates to controller-regulators which are designed to prevent an operator from too rapidly cutting out the resistance in a motor-circuit and comprises a handle adapted to be mounted on the controller-shaft provided with a compound dog capable of movement in two directions arranged to coöperate with a rack and stops fixed to the controller-casing, whereby the operator is obliged to turn the controller slowly step by step.

Ebersole does not claim to have conceived the invention prior to the first part of February, 1904. It is claimed on behalf of Durkin that he reduced the invention to practice in the month of January, 1904, and it has been found by each of the lower tribunals that Durkin did reduce the invention to practice at this time by the construction and operation of a device which is known in the record as "Durkin's Exhibit E." In the view which I take of the case this is the only question which need be considered.

Prior to the conception of the invention in controversy Durkin devised several different forms of mechanism intended to accomplish the function of the device in issue. The present device differs from the prior ones and from prior devices of this character principally in the form of the pawl or dog which coöperates with the fixed rack and stops. Durkin states that he first conceived the idea about December, 1903; that work was begun on Exhibit E in Eckersley's shop during the first part of January, 1904; that the device was completed and in its present condition about the 6th or 7th of January, and that it worked all right at that time.

The workman who made this exhibit, Wetzel, states that he worked on it in the "fore part of January " and that it was completed and

in its present form before January 20, 1904. He fixes the date of the completion of this exhibit as being immediately after the holidays and also by reference to a conversation with applicant, Durkin, during which Durkin told him that he was going to be married on January 20 and gave him a few cigars.

Eckersley, in whose shop this Exhibit E was made, states that the exhibit was made before January 20, 1904, and that it worked all right. This witness is also able to recall the date as being just before Durkin's marriage.

It is contended by counsel for Ebersole that since Durkin did not testify as to the date of his marriage and as no record evidence was produced with respect to this event the bare recollection of the witnesses is insufficient to establish this date; but as the witnesses seemed to have an independent recollection of the events in question and the date of their occurrence it was unnecessary to produce documentary evidence as a means of refreshing their recollection. They testify positively as to the date, their testimony is uncontradicted and unshaken by cross-examination, and I see no reason for disregarding it or concluding that they were mistaken, especially in view of the fact that the event to which they referred as a means for fixing the date was one which was not exclusively within their knowledge, but which could have easily been disproved by counsel for Ebersole had he been apprehensive that they were mistaken.

he

Counsel for Ebersole points out certain apparent inconsistencies in Durkin's record, presumably with the purpose to show that the testimony is to be given but little weight. It is pointed out that although Durkin states that he did not " get the idea " until December, 1903, states that he began work on Exhibit E in July, 1903; but the part which Durkin states he made in July, 1903, was the rack, which, while it forms a part of the new combination set forth in the issue, is, in fact, an old construction, similar to those used by the applicant in his previous inventions. It seems clear from the whole record that this rack, which he says he made in July, 1903, was made, for use with one of the prior constructions of controller-handles and not with a view to its use with the specific construction of pawl which forms the gist of the invention in issue. It is further pointed out that although it is claimed that Exhibit E was completed before Durkin's marriage Durkin, in answer to cross-question 103, in which he is asked why a construction like Exhibit E was not put into use in New York city instead of another construction, made the following state

ment:

A. The reason was, at the time I got up Exhibit E in 1904 I did not have money enough to back it up, as I had a wife and family to take care of, and other things to take up my money. That was the reason that I tried to get

Mr. Baird, Taylor and others interested in my machine. If I had had money enough at that time I would have put it into New York, but "D," Exhibit D, was in New York at that time that I was getting up Exhibit E, knowing that Exhibit E was simpler than "D."

At first sight this answer appears to be inconsistent with the claim that Exhibit E was made before Durkin's marriage; but it seems obvious to me that the witness had in mind not the time when the exhibit was made but the time when the invention was ready for commercial exploitation, since the commercial use of the device was the matter under consideration, and since, if this was not what was in the witness's mind, that part of the answer which states that he "did not have money enough to back it up" would be without point, because the witness unquestionably had the money to complete, and did, in fact, complete, the exhibit to which he referred.

I am of the opinion that the evidence is sufficient to show that Exhibit E was complete and in its present condition prior to January 20, 1904.

It is further strenuously urged that Exhibit E is not a reduction to practice because it was never tested in actual practice on a controller; but, as pointed out by the lower tribunals, devices of this character were well understood at the time this exhibit was made, and the only point to be determined by a test was whether, upon the operation of the controller-handle, the dog which was attached thereto would function in the way intended. This could be determined just as well by the operation of the exhibit as it stands on its block of wood as if it were attached to the shaft of a controller. The witnesses state that it operated satisfactorily when it was completed. It is objected that this is only the conclusion of the witnesses, and it is urged that their bare statements are not sufficient on this point, but that they should have stated how the device was tested and how the parts behaved under the test. While this is not one of those simple devices which requires no test to demonstrate its operativeness, it is so simple that the bare statement that it operated satisfactorily by witnesses who thoroughly understood its construction and knew what it was intended to do is sufficient evidence of a successful test, particularly where the device itself, unchanged, is introduced in evidence and is found to satisfactorily perform its intended functions.

It is therefore held that Durkin reduced the invention to practice before it was conceived by Ebersole.

The decision of the Examiners-in-Chief awarding priority of invention to Durkin is affirmed.

EX PARTE EMPIRE GRAIN & ELEVATOR Co.

APPLICATION FOR REGISTRATION OF TRADE-MARK.

Decided November 21, 1907.

132 0. G., 844.

TRADE-MARKS-—" NEVERFAIL "-DESCRIPTIVE.

The word "Neverfail" as a trade-mark for stock and poultry food properly refused registration, since it is descriptive of the character or quality of the goods to which it is applied.

ON APPEAL.

TRADE-MARK FOR FEED FOR STOCK AND POULTRY.

Messrs. Alexander & Dowell, for the applicants.

MOORE, Commissioner:

This is an appeal from the action of the Examiner of Trade-Marks refusing to register the mark "Neverfail" as a trade-mark for stock and poultry food for the reason that it is descriptive of the character or quality thereof and is not registrable in view of section 5 of the Trade-Mark Act.

The specimen filed with the application to show how the mark is actually used upon the goods contains in addition to "Neverfail" the words "Egg Producer Blended Chicken Feed Makes Hens Lay." The Examiner of Trade-Marks held that it is clearly the intention of the label to indicate that the use of the said chicken feed will never fail to make hens lay. This is believed to be the natural inference from the label as used. Undoubtedly as applied to stock or poultry food the mark indicates that the food will never fail to have the desired effect and is therefore descriptive of the quality of the food.

The mark is very similar to the word "Infallible," which was refused registration as a trade-mark for flour on the ground that it was descriptive of the quality of the goods, in the case of ex parte The Sauers Milling Company (C. D., 1907, 231; 129 O. G., 3161.) In fact, one of the definitions given in Webster's Unabridged Dictionary for "infallible" is "not liable to fail."

The mark of the application is also similar to the following marks, which have been refused registration on the ground that they are descriptive of the goods with which they were used: "Nevers-Tick," for lubricants, (ex parte Woolworth, C. D., 1902, 311; 100 O. G., 1976;) "Worthmore," for shoes, (ex parte Block Brothers Clothing Company, C. D., 1906, 357; 124 O. G., 1521;) "Rust? Never!" for hooks and eyes, (ex parte The De Long Hook & Eye Company, C. D.,

1907, 132; 128 O. G., 885;) "Self Loading," for cartridges, (The Peters Cartridge Company v. The Winchester Repeating Arms Company, C. D., 1907, 181; 128 O. G., 3287.)

Likewise the United States Circuit Court of Appeals in the case of Fuller v. Huff (C. D., 1900, 351; 92 O. G., 1620) held "Health Food" not to be a technical trade-mark for food, because the term means health food or health-producing food and is therefore descriptive of quality.

Obviously appellant should not be permitted to monopolize the term "Neverfail" for food of any kind, since any other manufacturer has an equal right to describe his goods by stating they "never fail " to produce certain results.

The decision of the Examiner is affirmed.

JOSLEYN v. HULSE.

PATENT INTERFERENCE.

Decided January 20, 1908.
132 O. G., 844.

1. INTERFERENCE PRACTICE-RULE 109.

No appeal lies from a favorable decision rendered on a motion to amend under Rule 109 whether rendered by the Examiner or the Examiners-inChief.

2. SAME-SAME-RULE 130.

The fact that a party cannot under the provisions of Rule 109 bring a motion to dissolve as to counts added to the issue of the interference will not of itself prevent him from urging under the provisions of Rule 130 the right of his opponent to make the claims.

ON PETITION.

TYPE-WRITING MACHINE.

Mr. Jacob Felbel for Josleyn.

Messrs. Knight Bros. for Hulse.

BILLINGS, Assistant Commissioner:

This is a petition by Josleyn that an appeal filed by him from a decision of the Examiners-in-Chief be heard and decided and that if the decision be affirmed an order be entered granting to Josleyn permission to urge under the provisions of Rule 130 the non-patentability to Hulse of the claims involved.

It appears that Hulse brought a motion under Rule 109 to amend the issue by the addition of certain claims which had been made by