This brings us to a discussion of the merits of the case. The senior party, the Detroit Stove Works, as previously stated, adopted this mark in 1874 and since that time has given it wide publicity-the evidence showing that the yearly sales of the company of "Jewel " stoves now exceed $2,000,000, and that the word is known to the trade even better than the firm-name.

The Barstow Stove Company relies upon the testimony of the witnesses Lewis and Taylor and certain inconsequential rebuttal testimony. The witness Lewis testified that he had worked for the Barstow Stove Company since 1865, and that up to 1876 he worked on patterns and after that time as a foreman. The witness stated that the company had manufactured parlor-stoves under the name of "Jewel" since he had entered its employ, and for about five years had been manufacturing ranges under that name. The witness was shown an 1868 catalogue of the company and found thereon a representation of a "Jewel" parlor-stove. He also produced an iron pattern from which castings for the stove were made, and into which was cast "Patent Jewel April 15, 1862." The witness at first testified without reservation that this casting was made in 1862 but later admitted the notation

means just what it says on there, the patent and the date.

He also testified that several thousand "Jewel" stoves had been made by the company. Taylor testified that he had been employed by the Barstow Stove Company since 1864 as a molder, and that the company had been manufacturing "Jewel" stoves since that time. The witness stated from recollection that the company had also manufactured stoves designated as "The Harp," "Old Wood," "Bay State," "Model Cook," "Union Cook," "Barstow Cook," "Pattern Cook," ""May Flower," "Lilydale," and "Parlor Franklin." He was asked about how many castings a week were then being made for stoves having "Jewel " on them, and replied:

More or less, according to the way they order. It's an old stove and has seen its best days.

The weight of some of the most material testimony of these two witnesses is greatly lessened because the testimony was given in response to leading and improper questions, and, if the disposal of the case depended upon this testimony, we would feel constrained to sustain the objections noted at the time, and disregard it. Instead of being asked, what words, if any, were used by the company in connection with the manufacture of its stoves, and the nature and extent of such use, the witnesses were asked

whether or not the word "Jewel" was ever used as a trade-name in the stove manufacturing business of the Barstow Stove Company?

Throughout the examination of these witnesses leading and suggestive questions were asked. 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. The witness instead of giving his independent recollection of past events becomes by this practice a mere echo whose recollection stimulated by leading questions keeps pace with those questions. The practice is objectionable and subversive of justice, and should be stopped.

In June, 1905, the Barstow Stove Company, through its president, filed an application for the registration of the words "Bay State" as its trade-mark. Among the specimens of the mark filed with the application was one containing the words "Jewel Bay State." The Examiner in a written communication directed the attention of the company to this fact and suggested that the description and drawing should be revised accordingly. In reply to this suggestion the attorney for the company, whose office was located in the same city as the home office of the company, withdrew the specimen and stated "that the words' Bay State' have been used alone as a trade-mark." The company also asked leave to amend the application so that it might show that the mark had been continuously used since the year 1848. Leave was granted, and the application was amended accordingly. The application, as amended, was sworn to by Mr. Barstow, the president of the company, and is in part as follows:

The trade-mark consists of the two words "Bay State." The trade-mark has been continuously used in the business of said corporation since January 1, 1848. The class of merchandise to which the trade-mark is appropriated is stoves and furnaces, and the particular description of the goods comprised in said class upon which said trade-mark is used is, stoves, ranges, gas-stoves, gas-ranges, hot-air furnaces, and low-pressure steam and hot-water boilers for heating purposes.

The witness Lewis was asked how long the words "Bay State" had been used in connection with stoves and ranges. He replied: "Probably twenty years," notwithstanding the sworn statement of the president of the company that it had been the mark of the company since 1848.

It is not stated by either Lewis or Taylor whether one or a hundred stoves were manufactured prior to 1874, the date when the Detroit Stove Works adopted this mark; neither do they state when these stoves were first placed upon the market. It is inconceivable, in view of the fact that so much time had elapsed and that so many different kinds of stoves had been manufactured by the company, that they should have been able to state with any degree of certainty

the real date when the company commenced to manufacture and sell these stoves. If their testimony with any degree of precision fixed the date when a substantial number of these stoves were manufactured, we would not hesitate to assume the sale of those stoves. In view, however, of the unsatisfactory nature of the testimony of these two witnesses, the fact that the books of the company were at its disposal when opportunity was given it to take testimony, that these books must have disclosed beyond peradventure whether or not these stoves were manufactured prior to 1874, and whether or not they were sold prior to that date, and in view of the further fact that prior to this controversy we find the company disclaiming the word "Jewel" and the president of the company stating under oath that the words "Bay State" were and had been since 1848 the trade-mark of the company, we agree with the Patent Office that it would be inequitable and unjust and against the weight of the evidence to deprive the Detroit Stove Works of the benefit of a trade-name which it has taken years and effort to establish. We are impressed with the belief that, but for the American Stove Company, the Barstow Stove Company would not have become a party to these proceedings since, as one of its own witnesses stated, the stove in connection with which it has used this mark "has seen its best days."

We have carefully examined the testimony as to the prior use by the Union Stove Works of this mark, and agree with the Commissioner that the record is insufficient to constitute a bar to the registration of the mark by the Detroit Stove Works.

The decision of the Commissioner of Patents in both cases was right, and is 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.]

WEEKS V. Dale.

Decided March 3, 1908.

135 O. G., 218; 30 App. D. C., 498.

INTERFERENCE-ORIGINALITY-EVIDENCE.

W., who was a manufacturer of cluster-sockets, entered into a contract with D., whereby he was to furnish such sockets to D. and to no other manufacturer, and D. was to push the sale of the same. There was a demand for an improved form of socket, and W. constructed such a device embodying the issue in August, 1902, which he testified he showed to D. Held that this testimony in view of the relation between the parties and in the absence of an unequivocal denial by D. is sufficient to establish such disclosure,

Mr. W. Clyde Jones, Mr. R. L. Ames, and Mr. Melville Church for the appellant.

Mr. W. M. Stockbridge for the appellee.

SHEPARD, J.:

This is an appeal from a decision of the Commissioner of Patents awarding priority to John H. Dale of the invention of a clustersocket in an interference proceeding having the following issue:

1. In a cluster-socket, the combination of a finishing-cap and a block of insulating material located centrally therein, and having lamp-contacts attached thereto for a plurality of lamps, said block being supported wholly by said cap, and a suitable support with which said cap is removably connected.

2. A cluster-socket, comprising a finishing-cap, means for attaching it to a support, a block of insulating material located centrally inside of the cap, lampsocket terminals attached to the block, and means for supporting and suspending the block upon or from the cap whereby it is removable with the cap from the support.

6. A cluster-socket, comprising a finishing-cap having a plurality of openings therein, a metallic disk closing the top of said cap, and removably connected therewith and having means for attachment to a support, a block of insulating material wholly within the cap and mounted independent of said disk and electric terminals carried by the insulating-block and presented at the respective openings in the cap.

7. A cluster-socket comprising a dome-shaped finishing-cap having a plurality of openings therein, a support-plate adapted to cover the concave side of said cap and removably connected therewith, a block of insulating material inside of said cap, circuit-terminals attached to said block and binding-screws for conductors connected with said terminals and located on that face of the block adjacent to said support-plate, whereby the removal of the cap from the supportplate will expose the binding-screws.

The issue of the declaration contained three other counts numbered, respectively, 3, 4, and 5; but as to them the interference was dissolved. The invention in controversy is an electrical fixture known as a "cluster-socket," which is a single structure adapted to support a plurality of incandescent lamps, and to convey current commonly to all of them. This cluster is of the type known as the wireless cluster, being so constructed that no electric wires are used except the two circuit-wires. The wireless cluster comprises a block of insulating material to which are attached two master plates or pieces having attached to, or formed upon them the lamp-holding and contact devices so that when current is delivered to the two plates from the two main wires, it will be distributed to all of the lamps. The structure also comprises an external facing or finishing cap having orifices through which the lamps are thrust to engage the contact devices, and a base which is secured to the ceiling, and to which the finishing-cap is secured.

In the invention of the issue the block of insulating material, the contact-plates and the lamp-holding devices are all supported upon

the finishing-cap so that by disconnecting the cap and the base-plate, having the latter attached to the ceiling, the entire mechanism is exposed.

Dale filed his application February 18, 1904, and the same ripened into a patent on April 19, 1904. Weeks's application was filed May 17, 1904.

Weeks was an inventor and manufacturer of clusters covered by two patents that had been issued to him, the first on March 28, 1898. Dale was the president of the Dale Company which was engaged in the manufacture and sale of electrical fixtures. Weeks sold the product of his manufacture to the Dale Company, and entered into an agreement with it, which was renewed January 4, 1902. The last agreement is the only one in evidence, but was shown to be a substantial renewal of the former one. Weeks bound himself to sell the devices covered by his patents to the Dale Company and not to supply the same to any person or persons in the United States for any reason whatever. This included also any improvements in rearrangement of, or additions to the said device which Weeks may invent or receive a patent for. The Dale Company agreed to push the sale of the device, to introduce it, so far as it lay in its power, throughout the United States, to advertise it, and to order it from Weeks in lots of not less than 1,000. It also covenanted not to make or sell or procure to be made and sold any other multiple or socket clusters than those furnished by Weeks. In case of any breach of the covenants Weeks was authorized to terminate the agreement upon thirty days' written notice. In such event Weeks was to fill all pending orders, and the Dale Company was to have the right to sell the balance of stock, subject to the agreed payments to Weeks.

Considerable sales were made under these agreements. Competition with the product of another and later inventor in the same field, apparently, caused a diminution of sales, and suggested the importance of an improvement in the old device. Weeks's preliminary statement claims conception of the invention of the issue in July, 1899, and reduction to practice in July or August, 1899. Dale, who is the president of the Dale Company, claimed conception in January, 1903, disclosure and drawings in the same month, and reduction to practice in November, 1903. Dale took no testimony in support of his said dates, but relied on his application as filed. Weeks has not only the ordinary burden imposed upon the junior party in all cases, but also the additional burden created by the patent issued to Dale before his later application was filed.

Weeks attempted to show that he had conceived the invention in 1899, constructed a model and disclosed it to Dale. All the tribunals of the Office concurred in the conclusion that his evidence was