ed which would invalidate such legislation as impairing the obligation of the contract.

The same rule has been applied to acts validating illegal bond issues. The authority to issue bonds being by legislative grant, the subject is one peculiarly within the legislative will. (National Bank v. Yankton, 101 U. S., 129; Thompson v. Perrine, 103 U. S., 806; New Orleans v. Clark, 95 U. S., 644; Grenada County v. Brogden, 112 U. S., 261; Otoe County v. Baldwin, 111 U. S., 1; 1 Dillon, Municipal Corporations, p. 544; Cooley's Const. Sim., 6th ed., 456; Read v. Plattsmouth, 107 U. S., 568; Bolles v. Brimfield, 120 U. S., 759.) It is clear that where the right conferred is purely a statutory one, a mere privilege, as in the case at bar, it is within the power of Congress to modify or withdraw it, at least before the application has matured into a patent.

We think the Commissioner erred in the following statement of what he conceived to be the law:

In the present case, under the statutes in force prior to March 3, 1903, Lindmark had an undoubted right to a patent at the time he filed his United States application on January 16, 1903, but, if the act of March 3, 1903, is given the construction contended for by De Ferranti, this right was taken from him by the passage of the act. Furthermore, had Lindmark's patent issued prior to March 3, 1903, his patent, which was valid at the date of its issue, would be rendered invalid by the act.

The Commissioner is confused as to the time that the applicant for a patent acquires such a vested right as may not be disturbed by Congress. This right accrues, if at all, when a patent is issued, and not before. The mere filing of an application confers no such right. It is immaterial, so far as the exercise of the power of Congress is concerned, if it does afterward appear that, under the pending application affected by the legislation, applicant would have had a valid right to a patent. It is true that a patent is a contract between the Government and an individual. (Curtis on Patents, sec. 23; 1st Robinson on Patents, sec. 20, and 40 to 43; Brake Beam Case, 106 Fed., 693, 701.) It is likewise true that it is the granting of Letters Patent that forms the contract; and not the filing of the application. If Letters Patent had been issued to Lindmark, as suggested by the Commissioner, before the passage of the act, we would be confronted with a very different question. At the date of the passage of the act of March 3, 1903, no patent had been issued to Lindmark and he had no such contract with the Government as the protecting clauses of the Constitution place beyond the power of Congress to affect by legislation.

The suggestion that the construction here applied to the statute in question may in this particular case work an injustice, is a matter beyond our power to remedy. The judicial department is not concerned with the policy of the law. That belongs to the legislative

branch of the Government. If the law operates inequitably it may be a proper matter to call to the attention of Congress, but, since the hardship is imposed by operation of law, it is beyond the power of the courts to grant any relief.

The judgment of the Commissioner of Patents is reversed, and the clerk is directed to certify these proceedings as required by law.

[Court of Appeals of the District of Columbia.]

IN RE THE INDIAN PORTLAND CEMENT Co.

Decided February 18, 1908.

134 O. G., 518; 30 App. D. C., 463.

1. TRADE MARKS-ANTICIPATION.

A trade-mark the distinguishing feature of which consists of an Indian's head showing profile with the conventional feather head-dress, within a circle, was properly refused registration in view of the prior use on the same class of goods of a mark showing a front view of an Indian's head with a feathered head-dress.

2. SAME-SAME.

Where the mark of an applicant so resembles a prior registered mark that the goods of each would be likely to be known to the public by the same name, the registration of the former should be refused.

Mr. J. D. Sullivan and Mr. Edw. S. McCalmont for the appellant. Mr. F. A. Tennant for the Commissioner of Patents.

SHEPARD, J.:

The Indian Portland Cement Co., a corporation of New Jersey engaged in manufacturing Portland cement in Neodesha, Kans., appeals from a decision of the Commissioner of Patents denying its application for the registration of a trade-mark. The distinguishing feature of the trade-mark, alleged to have been used since July 1, 1906, consists of an Indian's head showing profile with the conventional feather head-dress, within a circle. Between this and an outer circle appear the words, "Indian Portland Cement Co., Neodesha, Kansas." The ground of refusal to register was that the trade-mark so closely resembles another as to be apt to deceive purchasers. The reference is to a trade-mark registered by Miller, Mason & Co., on August 2, 1904. That mark is described as "the representation of an Indian's head with a feather head-dress." The drawing and labels used by them on barrels and bags of Portland cement, show a front view of the Indian's head with a feather head-dress. While a comparison of the two marks as represented shows difference in details, the feature of each is a conventional Indian head, calculated to make the manufactures on which they are used known to the public as Indian-head cement. We agree with the Commissioner that the resemblance is such as to produce the confusion in trade which it is the

object of the Trade-Mark Act to prevent. (See, in the matter of the application of Herbst Importing Co., post, 383; 137 O. G., 1939.) The decision will be affirmed, and the clerk will certify this decision to the Commissioner of Patents as required by law.

[Court of Appeals of the District of Columbia.]

VIELE v. CUMMINGS.

Decided February 14, 1908.

134 O. G., 777; 30 App. D. C., 455.

INTERFERENCE-PRIORITY-RIGHT TO MAKE THE CLAIMS.

The issue as interpreted in the light of the specification of the party first making the same is limited to an improved means for protecting the necessary joints in conductors for high-tension currents of electricity. The invention of the other party is an improvement in insulating-conductors, his plan of insulation at the joints being the same as along the entire length of the conductor. Held that the latter has no right to make the claim, the resemblance of the two devices being accidental rather than real.

Mr. M. A. Christy for the appellant.

Mr. L. S. Bacon, Mr. J. H. Milans, and Mr. C. T. Milans for the appellee.

SHEPARD, J.:

This is an interference proceeding involving priority of invention of an improvement in connecting conductors for cables, the issue of which is the following:

As a means for insulating joints in conductors for high-voltage currents, a rigid sleeve of non-conducting material surrounding the splice between the conductors forming the bridge or connection between the insulations on the connecting conductors, and having the space between the conductors and the sleeve filled with non-conducting material.

The application of Viele was filed August 15, 1902, for an improvement in connecting conductors for cables, and the claim now in issue was adopted December 5, 1902. The application was allowed September 20, 1904, but was permitted to lapse for non-payment of the fixed fee. It was renewed within proper time on March 25, 1905.

Cummings's application was filed February 1, 1902, entitled a "Conduit for electrical conductors." The claim of the issue was suggested to him by the Examiner April 3 and adopted April 6, 1905. Thereupon, the interference was declared.

Viele's preliminary statement filed in response to the notice of interference failed to allege a date of conception prior to the date upon which Cummings's application had been filed; and he was

notified by the Examiner of Interferences that by reason thereof judgment would be rendered against him unless cause be shown why the same should not be done. Viele thereupon filed a motion. to dissolve the interference on the ground that there was no interference in fact, and that Cummings had no right to make the claim in issue. This was referred to the Primary Examiner who denied the motion. The Examiner of Interferences, following that decision, rendered judgment against Viele in accordance with the notice that had been given. Viele appealed to the Examiner-in-Chief who, being of the opinion that Cummings had no right to make the claim, reversed the decision of the Examiner of Interferences, and awarded priority to Viele. On appeal to the Commissioner, this decision was reversed and award of priority made to Cummings. From his decision this appeal has been prosecuted.

The question for determination is the right of Cummings to make the claim of the issue.

Viele's application is limited to a joint or splice for electric cables carrying high-voltage currents, and his invention is described as follows:

The invention described herein relates to certain improvements in joints or splices for electric cables carrying high-voltage currents. It has heretofore been the practice in making such splices or joints to remove the insulation from the sides of the conductors to be connected a suitable distance, and then form an electrical joint or union between these conductors in suitable manner. Insulation in the form of paper or fibrous tape was then applied by hand to the portions of the conductors, from which the insulation was removed. It is a matter of considerable difficulty to determine when a sufficient amount of tape has been applied to render the joint as strong electrically as the original insulation. As considerable care and labor are required in applying the tape, the workman is very liable to shirk it and leave the joint imperfect. And further it is practically impossible to so apply the tape as to form a compact uniform thickness of insulation. The foregoing difficulties in applying and incident to the use of tapes in forming the insulation of joints are especially prominent when connecting the conductors of duplex and triple cable, as with such cable the conductor cannot be separated to any considerable extent and the tape has to be threaded between the conductors.

The object of the present invention is to provide for easy and quick formation of an insulating covering for the exposed ends of connected conductors of a uniform thickness and electrical strength which shall be at least equal to that of the original insulation. The invention is hereinafter more fully described and claimed.

In the accompanyng drawing forming a part of this specification, Figure 1 is a sectional elevation showing my improvement as employed in connecting the conductors of a triple cable, and Fig. 2 is a transverse section of the same on a plane indicated by the line II-II Fig. 1. In the practice of my invention, the sheath 1 and covering 2 of the cable is removed a sufficient distance and the insulation 3 of the conductors 4 is also removed, as is customary. Sleeves 5 are then slipped over one of the ends of the conductors and pushed back far

enough to permit of the ends of the conductors 4 being electrically connected. This connection may be formed in any suitable manner, as for example, by means of a metallic sleeve 6, soldered or sweated onto the ends of the conductor projecting into the sleeve, as shown. As the internal diameter of the sleeves 5 is made sufficiently large to slip over the insulation 3 of the conductors, there will be considerable space between the sleeve and the conductor when the sleeve is arranged over the joint, hence in order to hold the sleeve steady and form an internal support therefor, paper or fibrous tape 7 impregnated with insulatingwax is wrapped a few times around the sleeve 6 and the exposed portions of the conductor, and the plastic insulating material applied to the tape before the sleeve 5, which is made sufficiently long to overlap the insulation 3 on both sides of the point of union of the conductors, is slipped into position. The use of the tape and plastic insulating material is not necessary for insulating purposes, but it is preferred to employ them both as a centering-support of the sleeve and also as a filling preventing air-spaces within the sleeve. After all the conductors have been connected and insulated, as described, the paper sleeves on the several conductors are pressed together and a large paper sleeve 8, which was slipped over one of the cables before any of the conductors were united, is slipped into position over the sleeves 5, as shown, and serves to hold all the parts of the cable. This binding-sleeve is not necessary but is highly desirable as strengthening the joint. As is customary, a sheathing-sleeve 9 is placed around the joint and connected to the sheath 1 of the cable, and liquid insulating material, preferably, is poured into this sleeve until all air is forced out and the sleeve completely filled.

The claim of the issue, having been first made by Viele, is to be interpreted in the light of his specifications. He had not in mind a new insulation for the body of conductors, but an improved means for making and protecting the necessary joints in the ordinary cables or conductors for high-tension currents of electricity. His object was to

provide for easy and quick formation of an insulating-covering for the exposed ends of conductors, of uniform thickness and electrical strength which shall be at least equal to that of the original insulation.

He uses a rigid sleeve which is slipped over one of the ends of the conductor, and pushed back far enough to permit the two ends to be spliced. The splice is effected by means of a metallic section or sleeve soldered or sweated on the ends of the conductor which have been brought together. Plastic insulating material is then used as a filling to occupy the space between the splice-sleeve and the outer sleeve, which is long enough when slipped into place to overlap the insulations of the conductor on both sides of the splice-joint. Thus is formed-

the bridge or connection between the insulations of the connecting-conductors. The plastic material fills the space between the conductor and sleeve, so as to prevent air cavities or spaces. The result of the whole is an electrical strength equal to that of the insulation of the conductors.