Mr. J. C. Pennie and Mr. C. J. O'Neill for the appellant. SHEPARD, J.. Charles L. Fenner appeals from the decision of the Commissioner of Patents, in an interference case, awarding priority of invention of a combination of bed and couch, to his opponent John L. Blake. The issue contained twenty-one counts. Three of these, numbers 1, 7, and 21, were set out in the decision below as sufficient to indicate the scope of the invention. This seems a correct conclusion, and has been acquiesced in by the parties. Those counts are as follows: 1. In a combined bed and couch, the combination with the bed-frame of a laterally-movable support pivoted to the bed-frame, a seat member and a back member pivotally connected together and to said support, and an equalizing member pivoted to the bed-frame and to one of said members. 7. In a combined bed and couch the combination with the bed-frame comprising a base and ends, of two rocker-arms pivoted to said frame, the seat and back members pivoted to each other and to said rocker-arms respectively and movable from a position in alinement with each other to a position at right angles to each other, releasable locking means for holding said members in the right-angled position, and an arm pivoted to one of said members and to said frame so as to swing said members laterally when they are swung on the rocker arms. 21. In a combined bed and couch, the combination with the bed-frame, of a swinging support mounted thereon, the seat and back members pivotally connected with said support and each other, an arm pivoted to the bed-frame and to one of said members and positioned so as to swing the said support when the member to which the arm is pivoted is swung on the support, a staple mounted on one of said members, an arm slidably mounted in said staple and having a notch for engaging the staple, a dog pivoted to the notched arm and provided with a notch for engaging the staple so as to disengage the arm carrying it from the staple upon proper relative movement of said members. The invention of the issue is an improvement in bed-couches of what is called the Davenport type or style, in which the back of the couch is adapted to be dropped to the plane of the seat, thereby forming a bed. The mechanism for accomplishing this comprises two iron members attached to the seat and back respectively and hinged together, a member pivoted to the pintle of the hinge and also the base of the couch, which is called the suspension-bar, and a link pivotally attached to the end and to the back of the couch, called the equalizing-bar. The back of the couch is kept in its vertical position by means of a latch, which is automatically disengaged by raising the seat. Upon lowering the back the seat is carried forward by the suspending and equalizing bars to the extent that the seat and back project equal distances beyond the base or box of the couch when transformed into a bed. Blake's application was filed September 30, 1904. Fenner filed his application October 3, 1904, and received a patent thereon May 16, 69025-H. Doc. 1349, 60–2- -27 1905. As Blake's application was in the Office, Fenner takes no advantage by virtue of his patent, and has the ordinary burden of the junior party in interference. Fenner was, at the time the invention was made, general manager of the furniture factory of V. K. Sammons in Kansas City, Mo. Blake was the foreman of the upholstery department of the same factory, and had charge, also, of the assembling of the parts of couches made therein. The invention was developed and reduced to practice in the factory during the summer of 1903. The issue between the parties is that of originality. The swinging couch embodying the invention of the issue of the interference was assembled by Blake in his department, and was shortly thereafter sold. Others were thereafter made and sold by Sammons. The Sammons factory had previously manufactured and sold Davenport couches of what was called the "sliding sliding" and " and "gate-end" patterns. These were not satisfactory because to convert the couch into a bed, it had to be pushed away from the wall, the result of which was the moving and frequent injury of carpets. Besides, they did not work satisfactorily in some other respects. Fenner claims to have conceived the idea of the swinging couch in order to overcome said defects. He claims that he directed the construction of the hinges and bars, and directed their new arrangement, and that the work done by Blake in assembling the parts was under his instructions. Blake claims to have discovered the improvement, without suggestion from Fenner or any one else, and to have constructed and assembled the parts of the first swinging couch that was made. The Examiner of Interferences was of the opinion that Fenner had not communicated the invention to Blake, and decided in favor of the latter. The Examiners-in-Chief reversed his decision and awarded the invention to Fenner. On appeal to the Commissioner, who agreed with the Examiner of Interferences, the last decision was reversed. Owing chiefly to lengthy examinations and cross-examinations of the witnesses produced, the record of the evidence is voluminous. The material portions of this evidence have been reviewed at length, and fairly, in the several decisions of the Patent Office. We concur in the conclusions of the Examiner of Interferences and Commissioner, and as the decision of the latter will, therefore, be affirmed, we think it would serve no important purpose to add anything to their discussion of the testimony. It is sufficient to say, that Blake undoubtedly assembled all the parts, and produced the first construction embodying the invention, that was seen in the Sammons factory; and that while Fenner, as well as others, realized the importance of improving upon the sliding Davenport, of former manufacture, and may have had the idea of substituting a swinging one therefor, he has failed to prove a conception of the means to accomplish the desired result, much less its communication to Blake. Fenner having failed to overcome the case in favor of Blake, the Commissioner was right in awarding the invention to Blake. The decision will, therefore, be affirmed. The clerk will certify this decision to the Commissioner of Patents as required by law. Affirmed. [Court of Appeals of the District of Columbia.] AMERICAN STOVE COMPANY v. DETROIT STOVE WORKS AND BARSTOW STOVE COMPANY. BARSTOW STOVE COMPANY v. DETROIT STOVE WORKS AND AMERICAN STOVE COMPANY. Decided May 5, 1908. 134 O. G., 2245; 31 App. D. C., 304. 1. TRADE-MARKS-REGISTRATION UNDER INVALID ACT OF 1870-EVIDENCE OF CLAIM OF OWNERSHIP. Although the Trade-Mark Act of 1870 was held unconstitutional, the registration of a mark under that act is evidence of a claim to the mark by the registrant as of the date of the registration. 2. SAME-VAPOR-STOVES AND COAL-STOVES GOODS OF SAME DESCRIPTIVE PROP ERTIES. Gasolene and vapor stoves are used for the same purpose as coal and wood stoves and belong to the same genus. One who adopts the word "Jewel " as a trade-mark for gasolene and vapor stoves with full knowledge of the use at that time of the same word for coal and wood stoves is not entitled to registration. 3. SAME-INTERFERENCE-REHEARING TO ADMIT NEWLY-DISCOVERED EVIDENCE APPEAL. The reopening of a case for the introduction of newly-discoverd evidence is always a matter for the trial court and in its discretion, and the Court of Appeals of the District of Columbia will not review the decision of the Commissioner of Patents upon this point, except where it appears that there has been an abuse of discretion. 4. SAME-SAME-TESTIMONY-LEADING QUESTIONS. "We have observed a tendency on the part of patent attorneys to disregard the rules of evidence by asking questions grossly leading and suggestive, and it may not be amiss to state that where timely objection is noted in the record this court will be disposed to apply the rule and entirely disregard such testimony." 5. SAME-SAME-TESTIMONY ASSUMED. SHOWING MANUFACTURE OF ARTICLES-SALES In a trade-mark interference involving the word "Jewel" for stoves the court observed that, had the testimony established with certainty the manufacture of stoves bearing the mark in question, the sales of such stoves would have been assumed. 6. SAME-SAME-WEIGHT OF ORAL EVIDENCE WHERE RECORD EVIDENCE EXISTS. The indefinite oral testimony of witnesses as to the sale of goods bearing a given trade-mark, given more than thirty years after the events to which the testimony relates, will not be accepted as sufficient where it appears that records were in existence which would have proved the facts desired to be proved beyond peradventure, had they been consulted. Mr. H. N. Low, Mr. J. W. Munday, and Mr. H. L. Clarke for appellants. Mr. E. W. Vaill, Mr. T. E. Robertson, and Mr. S. R. Betts for appellee. ROBB, J.: These are interference proceedings involving the right to the use of the word "Jewel" as a trade-mark for stoves. As originally declared only the American Stove Company and the Detroit Stove Works were involved. Upon the taking of testimony by the former company evidence was adduced tending to show that the Barstow Stove Company and the Union Stove Works had used the mark prior to its use by either of the two parties to the interference. Thereupon the Barstow Stove Company filed an application for registration of the mark and was made a party to the interference. The relation between the American Stove Company and the Barstow Stove Company is friendly, as evidenced by the fact that they were represented by the same counsel before the Patent Office. We will first consider the relative merits of the claims to priority of the American Stove Company and of the Detroit Stove Works. The Examiner of Interferences, whose opinion was sustained by the Commissioner of Patents, found that the Detroit Stove Works in 1874 adopted and used the words "Crown Jewel" and the word "Jewel" alone as a trade-mark on coal and wood stoves; that the company has continuously and very extensively used the word "Jewel" as a trade-mark since that time; and that it began the manufacture of vapor-stoves in 1883 and later gas-stoves, and used the same trade-mark for these productions. We have carefully examined the record and believe it fully sustains said findings. It also appears that in 1878, and again in 1897, the company registered the word "Jewel" as a trade-mark for stoves. While the 1878 registration was under a law that was subsequently declared unconstitutional, it nevertheless clearly establishes the contention of the company that for more than thirty years it has claimed this word as a trade-mark. The earliest date claimed by the American Stove Company is 1881. It appears that the predecessors of this company at that time adopted the word as a trade-mark for its gasolene or vapor stoves notwithstanding their knowledge of its prior adoption and extensive use by the Detroit Stove Works on coal and wood stoves. The American Stove Company now seeks registration of the word for vapor or gasolene stoves on the ground that there is such a fundamental difference between such stoves and the stoves originally manufactured by the Detroit Stove Works as to entitle the American Stove Company to the right of registration. In view of the fact that this company's predecessors adopted this word when they knew that the Detroit Stove Works had given it a trade value in the manufacture and sale of stoves, we are not disposed to indulge in fine distinctions for the purpose of permitting this company to hold what its predecessors thus unjustly appropriated. Gasolene or vapor stoves are used for the same purpose as coal and wood stoves and belong to the same genus. The structural differences existing between them are largely due to the character of the fuel used. We agree with the Commissioner that— to permit one manufacturer to use upon his gas and gasolene stoves the mark upon which another manufacturer has built up a trade in coal and wood stoves would inevitably lead to mistakes and confuse purchasers As between the Detroit Stove Works and the American Stove Company, the former must prevail. This brings us to the consideration of the case between the Detroit Stove Works and the Barstow Stove Company. When the Barstow Stove Company was admitted as a third party to the interference and given opportunity to present proof, the company permitted that opportunity to pass without taking any testimony and informed counsel for the Detroit Stove Works that it would take no testimony but would rely upon the depositions of Lothrop H. Lewis and Albert N. Taylor as taken by the American Stove Company. Upon a finding, more than a year later, by the Examiner of Interferences adverse to the Barstow Stove Company, the company filed a motion to reopen the case for the purpose of taking newly-discovered testimony. This motion after careful consideration was denied by the Examiner of Interferences, and later on appeal by the Commissioner. This motion was based upon certain affidavits, including the affidavit of J. P. Barstow, president of the company. These affidavits contain nothing warranting the conclusion that the testimony sought to be introduced could not have been discovered during the time fixed for the taking of testimony by the use of ordinary diligence. They contain no showing that any effort whatever was originally made to discover additional evidence. The reopening of a cause for the introduction of newly-discovered evidence is always a matter for the trial court and in its discretion. (Richards v. Meissner, C. D., 1905, 595; 114 O. G., 1831; 24 App. D. C., 309.) There has been no abuse of discretion on the part of the Commissioner in denying the above motion. |