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50. REDECLARATION-MOTION TO DISSOLVE BY ORIGINAL PARTY.-The redeclaration of an interference for the purpose of adding another party thereto does not give the right to one of the original parties to bring a motion to dissolve within thirty days after such redeclaration, raising questions which might have been raised in the interference as originally declared. The time for bringing such motions expired at the end of the thirty-day period following the original declaration. Townsend v. Ehret v. Young v. Struble, 261. 51. APPEAL ON PRIORITY-MERITS OF JUDGMENT NOT CONTESTED.-Where an appeal from a decision on priority does not question the propriety of such decision, but merely seeks a ruling on questions previously considered by the Commissioner on interlocutory appeals, relief will be refused. Smith v. Irland, 265..

52. ORIGINALITY.-Evidence considered and Held sufficient to show that the junior party originated the invention in issue and disclosed the same to the senior party. Weston v. Benecke, 266.

53. SAME-DOCTRINE OF CONCEALMENT INAPPLICABLE.-Where it is found that one of two interfering parties originated the invention in issue and disclosed the same to the other, the doctrine of forfeiture of the right to a patent by concealment does not apply. Id.

54. REDECLARATION-MOTION BY ASSIGNEE OF ONE OF THE ORIGINAL PARTIES-TRANSMISSION REFUSED.-The interference was originally declared between A. and B. and was afterward redeclared to include the application of C., the assignee of A. Held that a motion to dissolve brought by C. on the grounds that the issue is not patentable and that B. has no right to make the claims will not be transmitted, since C. had an opportunity to bring such a motion as A.'s assignee. Townsend v. Thullen and Thullen v. Young, 269. 55. ACCESS TO APPLICATION.-A party to an interference is not entitled to see the parent application of a patent of the opposing party referred to in his preliminary statement when it does not appear that the opposing party is relying on such parent application to establish a date of constructive reduction to practice. Babcock v. Pickard v. Ashton and Curtis, 284.

56. PRIORITY.-The evidence considered and Held to show that Z. reduced the invention to practice prior to the earliest date claimed by H., and therefore priority was properly awarded to Z. Zimmer v. Horton, 290. 57. SAME CONCEALMENT.—An application was filed by E. and D., and an interference was declared between it and a patent to H. Thereafter an application was filed by Z., which was added to the interference. E. and D.'s and Z.'s applications were assigned to the same party, and E. and D. conceded priority to Z. It appeared Z.'s application was filed more than two years after his device was built and tested. Held that these facts do not bring the case within the doctrine of Mason v. Hepburn, as Z.'s device was tested in shops open to the public, and the filing of the application of E. and D. negatived any intention on the part of the assignee to abandon the invention. Id.

INVENTION. See Concealment of Invention; Construction of Claims, 1, 2; Delay in Claiming Invention; Employer and Employee; Infringement; Patentability; Priority of Invention; Substitution of Material.

1. PATENTABILITY-NOVELTY-ANTICIPATION.-Held that a method of covering playing-balls consisting of knitting separately a wrapper leaving a slit therein, inserting a deflated rubber ball through said slit, closing the slit by meshes of the same material as that forming the cover, and finally inflating the ball is anticipated by certain patents showing the idea of covering inflated rubber balls with a crocheted or knitted cover and another patent which contains

the idea of inserting a deflated ball in a cover, inflating the ball, and then closing the aperture. *In re Droop, 323.

2. SAME PROCESS-PRINTING ANILIN-BLACK.-Where it is old in the art of dyeing to fix anilin-black upon vegetable textile fabrics by a two-step process consisting in treating the fabric with salt of anilin alone and with an oxidizing salt mixed with a compound containing a catalytic agent and it was old to print textile fabrics in two-step processes. Held that to apply to the two-step printing process the selection of ingredients theretofore used in dyeing did not arise to the dignity of invention. *In re Chase and McKenzie, 441. 3. SAME DOUBLE SPOTS FOR BOWLING-ALLEYS.-Where it was old to provide spots in a bowling-alley to insure the accurate setting of the pins, claims covering two series of spots, one within the other, thereby to insure the correct setting of different kinds of pins having different-sized bases, not limited to any mechanical construction, set forth nothing which involves the exercise of the inventive faculty. *In re Milans, 179.

4. SAME

COMBINATION-ANTICIPATION.-The mere combination of articles disclosed in two former patents will not constitute invention unless it results in producing a new and useful article not applied by those familiar with the state of the art. A patent should not be issued when the alleged invention is a mere modification of the principle involved in former inventions or discoveries. In re Faber, 481.

5. SAME DOUBLE USE.-The mere combining of an ordinary calking tool or blade with an automatically-operating pneumatic hammer which is adapted to be controlled and adjusted by hand amounts to nothing more than an obvious double use that would naturally occur to one skilled in the art with mind directed to cheapening the cost of ship-calking and does not rise to the dignity of invention. *In re Mason, 490.

6. SAME PRINTED MATTER-NON-INVENTION.-A claim for a guaranty credit book having certain designated columns for certain entries Held to involve no invention over the prior art which disclosed the general scheme, the only difference being the addition of certain columns for the purpose of keeping an account of liquidated damages. *In re Taylor, 518.

7. SAME PROCESS.-A claim for a process of forming metal rings which differs from the references merely by the statement that a bead is formed centrally of the blank Held unpatentable. *In re White, 528.

8. SAME-SAME-FUNCTION OF MACHINE.-A claim for a process Held unpatentable when it does not appear that said process can be carried out by any other means than that invented for such purpose by appellant and for which he has obtained a patent. *Id.

IRREGULARITY IN DECLARATION OF INTERFERENCE. See Interference, 20; Motion to Dissolve Interference, 13.

JOINT INVENTORS.

INTERFERENCE-PRIORITY.-The question of the joint inventorship of one of the parties to an interference is not one that can be considered in an interference proceeding and a motion to take testimony on the question will not be granted. Pickard v. Ashton and Curtis, 238.

JUDGMENT ON THE RECORD. See Interference, 15, 16; Preliminary Statement, 9, 10; Reopening of Interference.

JURISDICTION OF THE COMMISSIONER OF PATENTS.

APPEAL AND ERROR-DECISION BY COURT OF APPEALS.-A decision by the Court of Appeals of the District of Columbia in an interference proceeding which leaves no question open for further consideration relating to priority of invention terminates the interference proceeding, and the Commissioner of Patents is without jurisdiction thereafter to entertain a motion by the losing

party to dissolve the interference on the ground that the court held that the opposing party was not entitled to a patent by reason of his having secured a foreign patent for the same invention on an application filed more than the statutory period prior to the filing of the application in this country. Gueniffet, Benoit, and Nicault v. Wictorsohn, 108.

JURISDICTION OF THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. See Interference, 21.

JURISDICTION OF THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA OVER PRACTICE IN THE PATENT OFFICE. INTERFERENCES.-The Court of Appeals of the District of Columbia has no original jurisdiction to direct and supervise the administration of the affairs of the Patent Office and a petition that the Commissioner of Patents be instructed to allow a party to an interference to take testimony denied. *De Ferranti v. Lindmark, 546.

JURISDICTION OF THE EXAMINER OF INTERFERENCES. See TradeMarks, 34, 51.

JURISDICTION OF THE EXAMINER OF TRADE-MARKS. See Trade- Marks, 34. JURISDICTION OF THE EXAMINERS-IN-CHIEF. See Motion to Suppress Testimony, 2.

JURISDICTION OF THE SECRETARY OF THE INTERIOR OVER THE COMMISSIONER OF PATENTS. See Renewal of Forfeited Applications, 4. LABELS. See Trade- Marks, 81, 105.

Refused Registration-Legend “Guaranteed Under the Food and Drugs ACT, JUNE 30, 1906," UNQUALIFIED.-Held that a label should be refused registration where the legend "Guaranteed under the Food and Drugs Act, June 30, 1906," is so used as to be likely to indicate that the merchandise upon which the label is used is guaranteed by the Government. Ex parte Tennessee Brewing Company, 227.

LACHES. See Construction of Statutes, 9; Trade- Marks, 91.

LETTERS ROGATORY. See Interference, 36.

LICENSES. See Access to Pending Applications, 1; Assignments; Grant of Patent. LIMITATION OF CLAIMS. See Construction of Claims, 3.

LIMIT OF APPEAL. See Interference, 10, 30; Motion to Amend Preliminary Statement, 3; Motion to Dissolve Interference, 2; Trade- Marks, 51. LIMIT OF TIME. See Motion to Amend Applications, 1; Motion to Dissolve Interference, 1, 14; Preliminary Statement, 2, 4; Trade- Marks, 40.

MANDAMUS.

PROPERLY INVOKED FOR ENFORCEMEnt of DECISION OF PRIMARY EXAMINER.— Where a Primary Examiner on a motion to dissolve decides that one of the parties has no right to make the claims of an interference issue and such party, after filing an appeal from such decision, fails to prosecute the same and abandons it, such judgment becomes final and binding upon the parties, and mandamus is the proper proceeding to secure the enforcement of such judgment and a vacation of any subsequent ex parte or inter partes proceedings adjudicating the same question or based upon such an adjudication. *United States of America, ex rel. The Newcomb Motor Company v. Moore, Commissioner of Patents, 332.

MERITS OF THE CASE. See Abandonment of Applications, 3; Amendments, 3. MISREPRESENTATION. See Trade- Marks, 69, 70, 71.

MOTION TO AMEND APPLICATIONS. See Interference, 7, 8, 14.

1. INTERFERENCE-MOTIONS UNDER RULE 109-PRACTICE.-Where a motion to amend under Rule 109 by the addition of two claims was transmitted, the Primary Examiner properly refused to consider two other claims presented for the first time at the hearing of the motion. Mattice v. Langworthy, 17.

2. SAME-SAME-DELAY IN BRINGING.-A motion to amend under Rule 109 brought after the thirty days allowed by the rules and accompanied by no excuse for the delay is entitled to no consideration and should not be transmitted.

Id.

3. SAME TRANSMISSION.-A motion to amend the specification of an application involved in an interference for the purpose of curing an alleged error therein should not be transmitted. Wheeler v. Palmros, 69.

MOTION TO AMEND PRELIMINARY STATEMENTS. See Amendment to Preliminary Statement; Preliminary Statement.

1. DELAY IN BRINGING.-A motion to amend a preliminary statement should be brought promptly after the discovery of the facts on which the motion is based, and delay in bringing the motion is a sufficient ground for denying it. Floyd v. Rohlfing, 82.

2. BASED ON TESTIMONY-DEFINITENESS.-Where a motion to amend a preliminary statement is based upon testimony taken in the case, it is indefinite if it fails to point out the particular parts of the testimony upon which reliance is placed. Id.

3. APPEALS. Since the granting of a motion to amend a preliminary statement will injure the opposing party only so far as his case will be prejudiced by evidence showing the true state of facts, a limit of appeal should be set by the Examiner of Interferences in his decision on such motions only when he denies the motion. Smith and Wickes v. Emerson v. Sanders, 97.

4. RECONSIDERATION AFTER DECISION BY THE COMMISSIONER.-Where a motion to amend a preliminary statement has been denied by the Examiner of Interferences and his decision affirmed on appeal, it should not be reconsidered in the absence of any additional showing as to the grounds on which it was denied. Dyson v. Land v. Dunbar v. Browne, 99.

5. AFTER TESTIMONY.-Where during the taking of testimony notice was given by counsel for W., in connection with an answer of a witness as to the date of disclosure, of an intention to present a motion for leave to amend W.'s preliminary statement, Held that such notice is insufficient to warrant amendment of the statement to change the allegation of making a model to an allegation of reduction to practice at such date. Kent v. Wilson v. Jeffery and Jeffery, 288.

6. SAME DELAY IN BRINGING MOTION.-Where counsel for W. was apprised of the facts which W. expected to prove as early as September 23, 1908, and the testimony in behalf of W. was filed in the Patent Office on October 9, 1908, but the motion to amend the preliminary statement was not filed until October 30, Held that in the absence of sufficient excuse the delay in filing the motion warrants the denial of the motion. MOTION TO DISSOLVE INTERFERENCE. See Interference, 1, 2, 3, 4, 8, 18, 20, 22, 23, 37, 43, 50, 54; Jurisdiction of the Commissioner of Patents; Mandamus; Trade- Marks, 9, 34, 131, 132; Transmission of Motions.

Id.

1. TIME FOR BRINGING.-A party may under Rule 122 wait till the thirtieth day after the approval of the preliminary statements to bring a motion to dissolve; but if he brings it before the thirtieth day he waives his right to the remainder of the period. Rockstroh v. Warnock, 10.

2. AMENDED MOTION-TRANSMISSION.-Where a party acting in good faith files a motion which is held to be indefinite and an amended motion curing the informalities is promptly filed within the limit of appeal set from the previous decision, the amended motion should be transmitted. Id.

3. SAME-EXPERIMENTAL PROSECUTION.-A party cannot be permitted to prosecute a case experimentally, and where the amended motion does not cure the informalities pointed out in the first decision a third motion is entitled to no consideration. Id.

4. DELAY IN FILING-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. Blackmore v. Hall, 50.

5. SAME-SAME.-The fact that an appeal had been taken from a decision refusing to transmit a former motion to dissolve and that applicant was awaiting a decision thereon, Held insufficient to excuse delay in bringing a second motion. Papendell v. Bunnell v. Reizenstein v. Gaisman v. Gillette, 57.

6. DELAY IN BRINGING.-The pendency of a motion to shift the burden of proof is no excuse for the delay in bringing a motion to dissolve. Price v. Blackmore, 72.

7. RES ADJUDICATA.-A decision refusing to dissolve an interference on the ground of res adjudicata is a favorable decision on the merits and will not be reviewed on appeal. (Rule 124.) Degen v. Pfadt, 73.

8. TRANSMISSION.-A motion to dissolve based on the defectiveness of the oath filed by the opposing party should not be transmitted, as it is well settled that the matter of a proper oath is an ex parte one and furnishes no ground for dissolution. Rowe v. Brinkmann, 75.

9. SAME.-A motion alleging that the opposing party has no right to make the claims on account of informality of his specification is too indefinite to be transmitted. Id.

10. PARTY'S RIGHT TO QUESTION HIS OWN RIGHT TO MAKE CLAIMS.-Where an applicant adopted claims suggested under Rule 96 from another application, a motion to disslove filed by him alleging that he has no right to make such claims is proper, and the same should be transmitted to the Primary Examiner. (Miller v. Perham, C. D., 1906, 157; 121 O. G., 2667, and Martin v. Mullin, C. D., 1907, 119; 127 O. G., 3216, modified; doctrine of Eichelberger and Hibner v. Dillon, C. D., 1907, 230; 129 O. G., 3161, extended.) Hermsdorf v. Driggs v. Schneider, 94.

11. TRANSMISSION.-A motion to dissolve filed late and based on alleged admissions in a motion filed by the opposing party will not be transmitted. Ellis v. Schroeder v. Allen, 146.

12. SAME. A motion to dissolve on the ground of non-patentability based on patents granted on applications filed subsequently to the date of invention alleged by one of the parties to the interference in his preliminary statement should not be transmitted. Raymond v. Kitselman v. Sommer et al. v. Claudin, 153.

13. SAME. A motion to dissolve on the ground of irregularity in declaration will not be transmitted where it appears that the basis of this ground is that the other party has no right to make the claims corresponding to the issue. Skinner v. Carpenter, 164.

14. AFTER NOTICE UNDER RULE 114-TRANSMISSION.-Where in answer to an order issued under Rule 114 against a junior party to an interference to show cause why judgment should not be rendered against him such party presents a motion for dissolution alleging non-patentability of the issue, it is incumbent upon him to comply strictly with the provisions of Rule 122, and such a motion filed after the expiration of the thirty days allowed by the rule should not be transmitted in the absence of a very satisfactory showing of reasons why it was not earlier presented. Ryder v. Brown v. Tripp and Mc Means v. White, 233.

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