subject-matter of counts 1, 2, 3, and 4 of the issue. Kinsman testified that at the termination of his experiments on the Fitchburg Railroad at Ayer Junction all equipment which he installed in connection with those experiments "was removed and the larger part of it put into junk." Nothing further was ever done by Kinsman toward installing either the first or the second experimental equipments. He did, however, in 1892 and 1893 equip a few miles of the Chicago & Evanston division of the Chicago, Milwaukee & St. Paul Railroad with an automatic stopping system of the fixed-contact type last adopted at Ayer Junction, which system was used in regular service for several months when it was taken out and discarded. The next evidence of activity on the part of Kinsman was the filing of his application herein on December 1, 1903, which, it will be noted, was ten years after the experiments which it must be held he permitted to become abandoned. The evidence shows that during this time he was active in experimenting with other forms of inventions, and that he took out several patents during the interval between 1893 and the date of the filing of his application herein. It further appears that many thousands of dollars were expended during this period in exploiting his inventions. The Examiner of Interferences in referring to his lack of diligence said:

If, however, it be granted that Kinsman had conceived the invention in 1893, which it is not, there is no sufficient showing of diligence in reducing such conception to practice. He was admittedly active in experimenting with other forms of invention along the same line, and took out several patents in the interval between 1893 and December, 1903. In the present case the delay covers a period of more than ten years, during which time several patents were granted to Kinsman upon allied inventions while there appears to have been no special effort to either actually or constructively reduce the invention stated in counts 5 and 6 of the issue to practice. He was not active at the time Kintner entered the field, April 14, 1903, and did not become active until about the time he filed his application, December 1, 1903. It must, therefore, be held that Kinsman was also lacking in diligence in reducing to practice the invention defined in counts 5 and 6.

The Examiners-in-Chief in their opinion, in discussing Kinsman's lack of diligence, said:

There is absolutely no evidence upon which to found a holding that Kinsman was diligent. While he filed his application less than eight months after Kintner he was doing nothing with this invention when Kintner filed, and had been doing nothing for ten years.

The Commissioner in his decision also finds Kinsman lacking in diligence.

It is alleged that the state of Kisman's health and his financial condition were such as to excuse his delay. It does not appear that either of these was the cause of his failure to do anything with this invention after the work at Ayer Junction. He was very busy about other forms of his invention and a small part of the money which he expended thereon would have enabled him to have educed the invention to practice, at least constructively.

As has many times been said, the object of the patent laws is to foster and protect invention for the universal benefit of mankind, and, while every presumption will be resolved in favor of the inventor who delays filing an application until he has perfected his invention, the object of the law would be lost to view should we permit the displacement of an inventor who has given the world the benefit of his discovery by one who has permitted his invention to lie dormant for a decade.

The decision of the Commissioner of Patents is affirmed, and the clerk of the court will certify this opinion and the proceedings in this court to the Commissioner of Patents, as required by law. Affirmed.

[Court of Appeals of the District of Columbia.]

EHRET V. STAR BREWERY COMPANY.

Decided June 2, 1908.

136 O. G., 1533; 31 App. D. C., 507.

TRADE-MARKS-INTERFERENCE-MARKS INCLUDING STAB AS PRINCIPAL FEATURE. Held that a trade-mark consisting of a six-pointed star with the letters "GE" inscribed in monogram in the center so nearly resembles the trademark consisting of a six-pointed star surrounded by two circles, having inscribed between the inner and outer circles the words "The Celebrated Star Lager Beer," as to cause confusion in the mind of the public and deceive purchasers.

Mr. Wallace Green and Mr. Melville Church for the appellant. Mr. F. B. Brock for the appellee.

VAN ORSDEL, J.:

This is an appeal from a decision of the Commissioner of Patents in an interference proceeding (C. D., 1907, 346; 131 O. G., 693) involving the right of appellant to register, as a trade-mark, "the representation of a star for lager beer." It appears that on June 9, 1896, appellant Ehret registered a trade-mark for lager-beer consisting of a six-pointed star, with the letters "GE" inscribed in monogram in the center. On April 19, 1905, he applied for the registration of the same mark under the present law. Appellee, the Star Brewery Company, on September 5, 1893, registered a trade-mark consisting of a six-pointed star surrounded by two circles having inscribed between the inner and outer circle the words, "The Celebrated Star Lager Beer."

It was held by the Examiner of Interferences, and. affirmed by the Commissioner, that Ehret was not entitled to reregistration, for the reason that his mark so nearly resembled the mark of appellee as to

be likely to cause confusion in the mind of the public. Section 5 of the act of Congress approved February 20, 1905, among other things, provides

that trade-marks which are identical with a registered or known trade-mark owned or in use by another, and appropriated to merchandise of the same descriptive properties, or which so nearly resemble a registered or known trademark, owned or in use by another and appropriated to merchandise of the same descriptive properties as to be likely to cause confusion or mistake in the minds of the public or to deceive purchasers shall not be registered.

The mark of appellee and the one here sought to be registered by Ehret are intended to be used on merchandise of the same descriptive properties, namely lager-beer.

The dominant feature of the above marks is the six-pointed star, and, while the two marks show a difference in details, we are of the opinion that the main feature of each is such as, of necessity, to designate the goods on which they are used as Star Brand lager-beer. This being true, under the former decisions of this court, we will have to hold that the use of the mark sought to be registered by Ehret on lager-beer would tend to confuse the mind of the public with that of the registered mark of the appellee. (In re Indian Portland Cement Co., ante, 361; 134 O. G., 518.)

The decision of the Commissioner of Patents is affirmed, and the clerk will certify these proceedings as required by law. Affirmed.

[Court of Appeals of the District of Columbia.]

MELL v. MIDGLEY.

Decided June 2, 1908.

136 O. G., 1534; 31 App. D. C., 534.

1. RULES OF PRACTICE-BINDING FORCE OF.

The Rules of Practice in the Patent Office when not in conflict with law have the full force and effect of statutes. As the approval of such rules by the Secretary of the Interior is necessary to the adoption and establishment of such rules, the contrary is true that where a rule of procedure is in force it can only be repealed, modified, or suspended by the Commissioner with the approval of the Secretary of the Interior.

2. INTERFERENCE-APPEAL TO COURT ON PRIORITY-PATENTABILITY NOT CONSIDERED.

The question of the patentability of an invention is not one for determination by the court of appeals upon an appeal from a decision on priority. 3. SAME-SAME-REGULARITY OF COMMISSIONER'S ACTION.

After an adverse decision by the Primary Examiner upon a motion to dissolve decisions on priority were rendered by the Examiner of Interferences and the Examiners-in-Chief and appeal was taken to the Commissioner of Patents from the latter decision. Pending this appeal a successor

of the Primary Examiner requested jurisdiction of the interference for the purpose of considering the patentability of the issue. Such request was granted, and the Primary Examiner dissolved the interference upon the ground that the issue was not patentable. Upon petition to the Commissioner the decision of the Primary Examiner was set aside and the interference was restored to its prior condition of appeal to the Commissioner on priority. On appeal to the court of appeals from the decision of the Commissioner, Held that the regularity of the action of the Commissioner in setting aside the decision of the Primary Examiner dissolving the interference is not a question for the consideration of the court.

Mr. William E. Dyre for the appellant.

Mr. W. B. Corwin for the appellee.

VAN ORSDEL, J.:

This is an appeal from a decision of the Commissioner of Patents in an interference proceeding. The issue is involved in the following

counts:

1. In a vehicle-wheel, the combination with a main rim member and a removable side flange, said main rim member having a bead or rib extending toward the center of the wheel and a removable side flange having a similar bead or rib, of an expanding locking-ring engaging both of said ribs or beads.

2. The combination with a wheel-rim, of a ring having an outwardly-extending and inwardly-turned flange at one edge to engage the tire, and extending across and secured to the outer surface of the rim, a ring having an outwardlyextending and inwardly-turned flange to engage the tire at the other side, flanges on the adjacent edges of said rings extending inward therefrom parallel with one side of the rim, and a severed ring engaging said flanges to secure the rings together.

The appellant, Tod J. Mell, filed his application for Letters Patent on December 19, 1905, and the appellee, Thomas Midgley filed his application on April 29, 1905. The interference was declared October 23, 1906. In his preliminary statement, Mell alleged dates subsequent to the filing date of Midgley. On the face of the record, Midgley was entitled to a judgment of priority. Confronted with this embarrassing situation, Mell filed a motion to dissolve the interference on the ground of the non-patentability of the invention in view of certain prior patents. This motion was denied by the Primary Examiner. The interference came on for hearing before the Examiner of Interferences, and a judgment of priority was rendered in favor of Midgley. Mell appealed to the Board of Examiners-inChief, where the decision of the Examiner of Interferences was affirmed. Mell then appealed to the Commissioner of Patents, where the case was set for hearing on October 1, 1907.

It may be stated that on each appeal, Mell was insisting upon the non-patentability of the invention in issue, in view of the prior patent to one Harris, to which he referred specifically in his motion to dissolve the interference before the Primary Examiner.

On August 30, 1907, the Primary Examiner of Division No. 41 requested that further proceedings in the interference be suspended and jurisdiction be restored to him to consider the patentability of the issue. This request was granted by the Commissioner, and, on September 12, 1907, the Examiner decided the invention involved in the issue unpatentable. This decision was based entirely upon the Harris patent, which had been considered by his predecessor on the motion to dissolve by the Examiner of Interferences and by the Examiners-in-Chief, and which was suggested by Mell in the appeal to the Commissioner.

Midgley then filed a petition on September 24, 1907, praying the Commissioner

that all proceedings in the above-entitled case subsequent to the appeal to your honor on the merits, which was set for hearing Oct. 1, 1907, be set aside, and the interference restored to the condition it was in on the 15th day of August, 1907. And further that proceedings in the interference be suspended pending the determination of this petition.

The petition was granted by the Commissioner, and the case on appeal came on for final hearing. On December 6, 1907, the Commissioner. affirmed the decision of the Examiners-in-Chief. Mell filed a motion for a rehearing, urging that the Commissioner had exceeded his jurisdiction in granting the petition of Midgley and setting aside the decision of the Primary Examiner of Division 41. This motion was denied, and, thereupon, this appeal was taken.

It is contended by counsel for appellant that the case is not properly before this court, and should be remanded, with instructions to the Commissioner to proceed with the case in accordance with the rules regulating procedure in the Patent Office. The interference was suspended by the Commissioner, and the matter referred to the Primary Examiner, under Rule 128, which is as follows:

If, during the pendency of an interference, a reference be found, the interference may be suspended at the request of the Primary Examiner until the final determination of the pertinency and effect of the reference and interference shall then be dissolved, or continued, as the result of such determination. The consideration of such reference shall be inter partes.

It is insisted that, when the Primary Examiner declared the issue non-patentable, there was but one course of procedure left for appellee, which is set forth in Rule 124 as follows:

Where, on motion for dissolution, the Primary Examiner renders an adverse decision upon the merits of a party's case as when he holds that the issue is not patentable or that a party has no right to make a claim or that the counts of the issue have different meanings in the cases of different parties, be shall at once reject such claims as may be affected and shall set a time for reconsideration; after reconsideration, if he adheres to his original conclusion, he will make the previous rejection final and fix a limit of appeal. The appeal must go to the Examiners-in-Chief in the first instance and will be heard inter partes.