was filed by the administratrix, who executed the Carpenter application, opposing the concession and alleging that the same is in fraud of her rights. Rule 125 provides that a concession of priority in order to afford a sufficient basis for a judgment of priority must be "signed by the inventor himself (and by the assignee, if any.)" In the case of Skinner v. Murray, (C. D., 1903, 429; 107 O. G., 542,) where Rule 125 is construed, it is stated: In all papers of this kind the signature of the real owner is of course necessary, and to avoid dispute it is believed that the signatures of nominal parties are necessary as well. The parties are not claiming tangible property to which any one has a legal title at the present time, but merely the right to secure a patent by following the requirements of the law. The statute requires the inventor to make the application, even where he has parted with all interest, and therefore in all cases he is at least a nominal party. If after abandonment the attempt should be made to file a new application for the same thing, it would have to be made by the inventor. He should be required to place a statement on record which would estop him from coming forward with such application. Where the inventor is dead, the right of applying for and obtaining the patent devolves upon the executor of administrator, (sec. 4896, R. S.,) and papers that would require the signature of the inventor, if living, must be signed by said executor or administrator. In the present case not only has the administratrix refused to sign the concession of priority, but has filed in protest an affidavit alleg ing fraud. Where the application of both parties to an interference are assigned to the same company, circumstances may arise where it is for the interest of the common assignee to have judgment awarded in favor of one party to the prejudice of the rights of the other party and without regard to the actual dates of invention. This would be easy of accomplishment where both applications are assigned to the same assignee unless the signature of the inventor or, in case he is deceased, of the executor or administrator is required to a concession of priority. The decision of the Examiner of Interferences is affirmed. BLACKMORE v. HALL. PATENT INTERFERENCE. Decided February 8, 1908. 132 O. G., 1587. INTERFERENCE-DELAY IN FILING MOTION TO DISSOLVE-TRANSMISSION. A delay of seven weeks in the filing of a motion to dissolve will not be excused on a showing that counsel called applicant's attention to the advisability of filing the motion, that it was applicant's intention to visit Washington for the purpose of consulting his attorney regarding the motion, but that before a meeting could be arranged business of great importance called him to other places, especially in view of a vigorous protest by the opposing party against delay and a showing that such delay would result in hardship to him. APPEAL ON MOTION. METHOD OF PRODUCING ALUMINIUM. Mr. J. R. Nottingham for Blackmore. Mr. Joseph B. Hall per se. MOORE, Commissioner: This is an appeal by Blackmore from the decision of the Examiner of Interferences refusing to transmit a motion to dissolve the interference. The Examiner of Interferences denied the motion to transmit on the ground that appellant was not diligent in bringing his motion and that the showing made did not excuse the delay. The preliminary statements were opened and approved on October 4, 1907. Consequently the thirty days provided by Rule 122 for the filing of motions to dissolve expired November 4, 1907. Blackmore did not file his motion until December 26, 1907. The showing in excuse of the delay in bringing the motion consists of the affidavits of Blackmore and of his counsel. It appears therefrom that Blackmore's counsel called his client's attention to the advisability of bringing such a motion. Blackmore states that it was his intention to visit Washington for the purpose of consulting with his attorney concerning the matter, but that before a meeting could be arranged business of great importance called him to various other places, so that he did not reach Washington until December 19, 1907. If Blackmore was unable to personally consult his attorney within the proper time, it does not appear why the matter could not have been attended to through correspondence. According to Blackmore's own showing the delay was not unavoidable, but rather a matter of business convenience, in that he chose to attend first to matters he considered of greater importance. These affidavits do not indicate that Blackmore exercised due diligence to show circumstances that would justify excusing the delay, especially in view of Hall's vigorous protest and his showing that great hardship would result to him by reason of the delay. (Carney v. Latimer, C. D., 1905, 481; 119 O. G., 652; McKee v. Baker, C. D., 1906, 22; 120 O. G., 657.) The decision of the Examiner of Interferences is affirmed. BARBER V. WOOD. PATENT INTERFERENCE. Decided January 6, 1908. 132 O. G., 1588. INTERFERENCE-ABANDONMENT OF INVENTION-NOT CONSIDERED ON PETITION. A petition that a rule be issued against an opposing party to show cause why it should not be held that he has abandoned his invention and that petitioner be permitted to offer testimony upon such question will not be entertained under the Commissioner's supervisory authority where petitioner has other remedies and is, in fact, pursuing another remedy before the Examiner of Interferences. ON PETITION. SHEET-DELIVERY MECHANISM. Mr. Walter F. Rogers for Barber. Messrs. Southgate & Southgate for Wood. BILLINGS, Assistant Commissioner: This is a petition by Barber that a rule be issued against Wood to show cause why it should not be held that he has abandoned the invention of the issue of this interference, that counsel for Barber be permitted to be present and to participate in the examination of the witnesses on behalf of Wood, and that Barber be permitted to offer such testimony in support of the averment herein as may be deemed advisable. Barber's petition is, in effect, a petition for the exercise of the supervisory authority of the Commissioner. It is well settled that the supervisory authority of the Commissioner will be exercised only in case of manifest error and where the moving party has no other remedy. (Hicks v. Costello, C. D., 1903, 123; 103 O. G., 1163; Woods v. Waddell, C. D., 1903, 391; 106 O. G., 2017; Sobey v. Holsclaw, C. D., 1905, 523; 119 O. G., 1922; Locke v. Crebbin, C. D., 1906, 298; 124 O. G., 317; Adkins and Lewis v. Seeberger, C. D., 1907, 87; 127 O. G., 1578; Barber v. Wood, C. D., 1907, 96; 127 O. G., 1991; Daggett v. Kaufmann, C. D., 1907, 121; 127 O. G., 3641.) In the present case the record shows that petitioner did not exhaust his remedies before bringing this petition. On the day that this petition was filed Barber filed before the Examiner of Interferences the following motion: Motion is hereby made for an order permitting Barber to take testimony for the purpose of showing that the Wood invention is, in certain respects, inoperative as set forth by his application, and to establish the ground of public use of the invention prior to the date of Wood's application in interference, Serial No. 294,923, and that the invention was in use under circumstances showing that Wood had in fact abandoned the invention before he filed his second or new application. By granting an accompanying motion for suspension of proceedings pending the determination of the above petition to the Commissioner the Examiner of Interferences suspended action on the firstmentioned motion. Said motion, brought in the regular course of the proceedings, affords petitioner an adequate remedy without the necessity of invoking the supervisory authority of the Commissioner and should be determined in the first instance by the Examiner of Interferences. (Lowry and Cowley v. Spoon, C. D., 1906, 224; 122 0. G., 2687.) It is noted that petitioner in his brief bases his petition largely on the holding of the Court of Appeals of the District of Columbia in the case of Christensen v. Noyes, (C. D., 1900, 201; 90 O. G., 223.) In that case the application of Noyes was forfeited at the time Christensen's patent issued, so that "there was no pending application in the Office nor any unexpired patent with which it would interfere." In the present case the patent to Barber was granted April 12, 1904, while the application of Wood, allowed January 23, 1904, did not become forfeited until after July 23, 1904. The facts in this case therefore differ materially from those considered by the court of appeals in the case of Christensen v. Noyes, supra. The petition is denied. DUNLEVY & BROTHER v. NELSON MORRIS & Co. TRADE-MARK INTERFERENCE. Decided January 15, 1908. 132 O. G., 1588. TRADE-MARKS-INTERFERENCE-APPLICANT AND REGISTRANT. Where in an interference between an applicant and a registrant the latter takes no testimony and the former establishes a date of adoption and use prior to the date of registration, it is unnecessary to consider whether there is an interference in fact or whether the testimony shows actual conflict in trade. ON APPEAL. TRADE-MARK FOR LARD. Mr. T. W. Johnson for Dunlevy & Brother. BILLINGS, Assistant Commissioner: This is an appeal by Nelson Morris & Co., the senior party to this interference, from a decision of the Examiner of Interferences holding that Dunlevy & Brother is entitled to register a mark consisting of the words "White Lily" associated with a cluster of calla-lilies as a trade-mark for lard. 69025—H. Doc. 1349, 60–2- -5 The proceeding involves the application of Dunlevy & Brother, filed May 8, 1905, and the registration of Nelson Morris & Co., No. 20,180, granted September 29, 1891. The questions raised by the assignment of errors may be reduced to four contentions-first, that the evidence shows that Dunlevy & Brother used their mark as a grade-mark and not as a trade-mark; second, that the record does not show continuous use by Dunlevy & Brother and their predecessors since the year 1882; third, that there is no interference in fact, and, fourth, that the testimony fails to show actual confusion. As to the first contention, there is not sufficient evidence to warrant the conclusion that the mark in issue was used by appellee as a grademark and not as a trade-mark. Unquestionably the mark was used in a way to satisfy the requirements of the law as to trade-mark use, and the evidence fails to show that appellee used any other trademark on the particular product to which the mark in issue was applied. The testimony of Jeremiah Dunlevy and Paul Dunlevy, who are the present members of the firm of Dunlevy & Brother, and who are also members of the firm of Walker, Dunlevy & Bro., predecessors of the present firm, and of other witnesses who were employed by both of these firms shows that the trade-mark in issue has been in continuous use by Dunlevy & Brother and by their predecessors since 1882. This testimony is so clear and convincing that it requires no discussion. As Nelson Morris & Co. took no testimony to prove adoption and use prior to their registration, dated September 29, 1891, it follows that Dunlevy & Brother must be regarded as the first to adopt and use the mark. Since Dunlevy & Brother were the first to adopt and use the mark, registration must be granted to them even though their mark may conflict with the mark registered by appellant. Hence, the allegation that there is no interference in fact and that the testimony is insufficient to show an actual conflict in trade are immaterial to the determination of the right of Dunlevy & Brother to registration. The decision of the Examiner of Interferences is affirmed. OSWEGO MAIZE PRODUCTS COMPANY V. NATIONAL STARCH COMPANY. OPPOSITION. Decided February 6, 1908. 132 O. G., 1588. 1. TRADE-MARKS-OPPOSITION-SUFFICIENT OF PROOF TO NEGATIVE EXCLUSIVE USE. In a trade-mark opposition proceeding opposing registration of a mark under the "ten-year" proviso of Section 5 of the Trade-Mark Act proof |