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REVIVAL OF ABANDONED APPLICATIONS. See Abandoned Applications, 1.
RIGHT TO MAKE CLAIM. See Amendments, 2; Delay in Claiming Invention;
Interference, 16, 21, 22, 23, 25, 37; Motion to Dissolve Interference, 9, 10, 13, 15;
Priority of Invention, 8, 9, 10.

RIGHT TO PATENT. See Assignment; Concealment of Invention.
RUBBER STAMP. See Signature to Amendments.

RULES OF EVIDENCE. See Testimony, 4.

RULES OF PRACTICE OF THE UNITED STATES PATENT OFFICE. 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and establishment of such rules, the contrary is true that where a rule of procedure is in force it can only be repealed, modified, or suspended by the Commissioner with the approval of the Secretary of the Interior. * Mell v. Midgley, 512.

SIGNATURE TO AMENDMENTS.

Amendment-RUBBER STAMP.-Amendments to an application should be actually signed by an applicant or his attorney with pen and ink or equivalent writing material. Amendments signed by means of a rubber stamp will not be accepted. Ex parte Minehan, 137.

SIMILARITY OF MARKS. See Trade-Marks, 8, 29, 30, 41, 42, 48, 49, 65, 68, 71, 75, 85, 115, 116, 119, 120, 123, 137, 138, 139. SPECIFICATIONS. See Amendments; Construction of Claims, 1; Motion to Amend

Applications; Motion to Dissolve Interference, 9; Signature to Amendments. 1. PRACTICE-DESCRIPTION.-Where the meaning of a phrase used by an applicant is clear, no reason exists for delaying the prosecution of the case by insisting upon merely formal changes in the language used. Ex parte White, 150.

2. Statement of Invention.—A statement of invention forming a part of the specification which amounts practically to a mere repetition of the claims in different language is objectionable and should be canceled. Ex parte Edwards, 271.

3. Amendment-Adding DIFFERENT SPECIES.-The statement in the original specification that "I am aware of several modified forms of my invention, but deem it unnecessary to illustrate and describe the same in detail" does not warrant the insertion by amendment of descriptions and illustrations of species different from that originally disclosed. Ex parte Chaffee, 281. STATE OF THE ART. See Construction of Claims, 3; Invention, 4, 6; Patentability, 1, 3; Reduction to Practice, 9.

STATUTORY BAR. See Trade- Marks, 82.

STIPULATION. See Reopening of Interference.

SUBSEQUENT PATENTS. See Motion to Dissolve Interference, 12.
SUBSTITUTION OF MATERIAL.

PATENTABILITY.-The substitution of a rubber-covered roller for a metal-covered roller in a machine for winding wire or thread onto a spool, Held to involve merely the substitution of one well-known material for another. Ex parte Loveridge, 244.

SUITS FOR INFRINGEMENT AGAINST AN OFFICER OF THE UNITED STATES.

1. PATENTS-INFRINGEMENT.-A suit against an officer of the United States to restrain him from manufacturing field-guns and gun-carriages alleged to infringe certain patents owned by plaintiff is not a suit against the United States, since it is not sought to disturb the United States in possession and use of guns already manufactured, but the court is merely asked to restrain

an officer of the United States for invading rights granted by the Government itself. Fried. Krupp Aktiengesellschaft v. Crozier, 552.

2. SAME-SAME.-Plaintiff sued to restrain defendant, an officer of the United States, from infringing certain patents. The defendant demurred on the ground that the suit was in reality against the United States. Held that as it was not sought to disturb the United States in the possession of the alleged infringing article already manufactured the decree sustaining the demurrer should be reversed.

*Id.

SUITS FOR INFRINGEMENT AGAINST THE UNITED STATES. See Suits for Infringement Against an Officer of the United States.

SUITS IN EQUITY. See Infringement, 1.

SUPERVISORY AUTHORITY OF THE COMMISSIONER OF PATENTS.

See

Construction of Statutes; Interferences, 6, 13, 18, 23; Drawings, 1,9; Public Use, 2; Suspension of Interference; Trade- Marks, 9, 10.

SUPPLEMENTAL OATH. See Priority of Invention, 8.

EX PARTE MATTER.—The question whether or not a supplemental oath should be required has been uniformly held by the Office to be an ex parte matter upon which the proper determination of priority is not dependent, and the absence of such an oath furnishes no ground for holding that the issue is not patentable to the party in whose case the same is required. Phillips v. Sensenich, 14.

SURREBUTTAL TESTIMONY. See Interference, 17.

SUSPENSION OF INTERFERENCE.

DISCRETION OF THE EXAMINER OF INTERFERENCES.-The Commissioner will exercise his supervisory authority to review the decision of the Examiner of Interferences, refusing to suspend an interference proceeding only where it clearly appears that there has been an abuse of discretion operating to the injury of one of the parties. Brown v. Inwood and Lavenberg, 173. TECHNICAL MARK. See Trade-Marks, 35, 36, 37, 42, 46, 52, 61, 72, 83. TEN-YEARS CLAUSE. See Trade-Marks, 36, 46, 53, 66, 85, 103, 104, 114, 121. TESTIMONY. See Abandonment of Applications, 4; Evidence; Interference, 17, 27,

28, 33, 35, 38, 39, 40, 47; Joint Inventors; Motion to Amend Preliminary Statement, 2, 5, 6; Motion to Suppress Testimony; Preliminary Statement, 5, 11; Priority of Invention, 1, 2; Public Use, 2; Reopening of Interference; TradeMarks, 5, 24, 78, 79, 127, 132.

1. SUPPRESSION.-Testimony should not be suppressed on account of the failure of a witness to read his deposition before signing the same where it does not appear that such notice was given to the opposite party, as is required by Rule 159. Rhodes v. Rhodes, 22.

2. REBUTTAL.-When G., the junior party, alleges in his preliminary statement disclosure to others in 1904 and neither he nor his witness, M., in his testimony-in-chief, refers to an earlier disclosure, Held that the testimony of M. in rebuttal that G. disclosed the invention to him in 1903 is not to be given credence. Gould v. Barnard, 36.

3. ORIGINALITY-Employer and EMPLOYEE.-Evidence considered and Held to show that B. originated the invention and that no such relation of employer and employee was shown to exist as would cause the invention to inure to the benefit of G. Id.

4. ATTORNEYS-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." *American Stove Company v. Detroit Stove Works, et al. 407.

5. SUPPRESSION OF CROSS-INTERROGATORIES Filed Under Rule 158.-Where it clearly appeared that cross-interrogatories filed under the provisions of Rule 158 are improper cross-examination, a motion to strike them out was properly granted. Actiengesellschaft Paulanerbrau Salvatorbrauerei v. Conrad Seipp Brewing Company, 175.

6. EVIDENCE-BOOKS SHOWING DATES.-The production of a book purporting to show the date of a sale to which a witness has testified adds nothing by way of corroboration of a witness's oral testimony where the person who kept the book is not called to identify it. Id.

7. SAME-IDENTITY OF DRAWINGS AND PRIOR CONSTRUCTION-WEIGHT.- The testimony of a witness that photographic copies of application drawings are "practically the same thing" as a prior construction is very materially weakened by the admission under cross-examination that he did not understand such drawings, because he did not understand mechanical drafting. Id. 8. INVENTOR UNCORROBORATED.-It is well settled that the uncorroborated testimony of the junior party in interference is insufficient to overcome the presumption attaching to the prior filing date of the senior party. *Durkee, jr., v. Winquist and Turnstrom, 480.

9. CIRCUMSTANCES AND PRESUMPTION.-The testimony reviewed and Held, in view of the unquestioned facts of the case and the circumstances surrounding the transactions between L. and D., to sustain D.'s claim that he was the original inventor. *Duff v. Latshaw, 492.

10. SAME.-K., who succeeded D. as superintendent of L.'s factory, filed an application for the invention in issue at L.'s suggestion and for his benefit, L.'s application not being filed until after the interference was declared between K. and D. Held that this strongly discredits L.'s claim to inventorship. *Id.

11. ABANDONED EXPERIMENT.-D. constructed a model pulley embodying the invention in issue in 1895, but made no attempt to introduce the invention into commercial use or patent it, but passed it over in favor of another construction until 1904. Held that this model was nothing more than an abandoned experiment, which was unavailing as against a later conception by L. *Id.

12. EVIDENCE-CIRCUMSTANCES AND PRESUMPTIONS.-Where the testimony as to the testing of a device was given by witnesses skilled in the art and is clear and convincing, the fact that no record was kept of such tests does not discredit this testimony. *Horton v. 7immer, 555.

TESTS. See Abandoned Experiments; Reduction to Practice, 3, 4.
TRADE-MARKS. See Interference, 32; Testimony, 4.

1. DESCRIPTIVE-NOT REGISTRABLE.-A word or phrase which is not descriptive of the ingredients or characteristics of an article of merchandise to which it is applied is not registrable if it is descriptive of the uses to which the same may be put. Ex parte The Cobb Manufacturing Company, 6.

2. "SILVER DIP-DESCRIPTIVE.-The words "Silver Dip" as a trade-mark for a preparation in which silver articles may be dipped or immersed for the purpose of cleaning them is descriptive, and hence not registrable. Id.

3. CANCELATION-SHOWING THAT REGISTRANT WAS NOT THE SOLE USER INSUFFICIENT. Where a mark was registered under the "ten-years" clause of section 5 of the Trade-Mark Act of 1905, a showing that the registrant was not the sole user of the mark during the ten years next preceding the passage of that act is not sufficient to justify the cancelation of the mark. Whittemore Bros. & Co. v. C. L. Hauthaway & Sons, Incorporated, 8.

4. SAME "EXCLUSIVE USE."-The phrase "exclusive use" in the "ten-years" clause of section 5 of the act of 1905 does not mean "sole use," but the right to exclude others from using. Id.

5. SAME TESTIMONY IMPROPER Rebuttal.—Testimony tending to show use of the mark in issue by parties other than the parties to the controversy Held to be improper rebuttal. Id.

6. SAME-USE of DescriptivE TERM.-Where the registrant has shown exclusive use of the word "Hauthaway's" for ten years next preceding the passage of the act of 1905, Held that it is entitled to register the mark "Hauthaway's Lynn Burnishing Ink" even if the term "Lynn Burnishing Ink" has become the name of an article of commerce. Id.

7. APPOINTMENT of Representative in United STATES.-The appointment of a representative in the United States required by section 3 of the Trade-Mark Act of 1905 must be made by the applicant for registration. Authority to appoint such representative may not be delegated to an attorney. Ex parte E. Wertheimer & Cie., 19.

8. INTERFERENCE IN FACT.-An interference in fact exists between the words "Boraxine" and "Boraxaid," since they look alike and sound alike. Larkin Company v. Pacific Coast Borax Company, 20.

9. MOTION TO DISSOLVE-PRACTICE.-Questions cannot be urged on appeal which have not been raised in the motion and passed on below except under circumstances which would warrant supervisory action being taken. Id. 10. INTERFERENCE-MOTION TO SUPPRESS EVIDENCE-APPEAL NOT ENTERtained Before Final HearinG.-Where upon motion to suppress evidence on the ground that it is irrelevant the Examiner of Interferences postpones consideration of the question until final hearing, his decision will not be reviewed and reversed upon appeal prior to final hearing except in a clear case of abuse of discretion. (Royce v. Kempshall, C. D., 1905, 461; 119 O. G., 338.) Greene, Tweed & Co. v. Manufacturers' Belt Hook Co., 23.

11. TRADE-MARK USE-EVIDENCE.-That a particular brand of cards was known to the trade as "Stage" cards does not prove use of the name "Stage” aš a trade-mark to indicate origin and ownership. *United States Playing Card Co. v. C. M. Clark Publishing Co., 309.

12. ADDITIONAL MARK Used as a Trade-MARK.-Evidence considered and held to show that the ace of spades bearing a conventional figure of Columbia was adopted, used, and advertised as a trade-mark for playing-cards and that the word "Stage" was used in addition thereto merely for the purpose of indicating style, class, and grade. (Manufacturing Co. v. Trainer, C. D., 1880, 464; 17 O. G., 1217; 101 U. S., 51, 54; Columbia Mill Co. v. Alcorn, C. D., 1893, 672; 65 O. G., 1916; 150 U. S., 460, 463; Burton v. Stratton, 12 Fed. Rep., 676, 700.) *Id.

13. "NEVERfail"-DescrIPTIVE.-The word "Neverfail" as a trade-mark for stock and poultry food properly refused registration, since it is descriptive of the character of quality of the goods to which it is applied. Ex parte Empire Grain & Elevator Co., 33.

14. "NUTTY CORN"-DESCRIPTIVE.-The words "Nutty Corn" held to be descrip⚫tive of a mixture of candied nuts, corn, and cocoanut and registration of the same properly refused. Ex parte C. Shenkberg Co., 42.

15. 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. Dunlevy & Brother v. Nelson Morris & Co., 53.

16. OPPOSITION-SUFFICIENCY 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 of contempora

neous use by the opposer after the passage of the act is not sufficient to negative the "exclusive” use required by the statute. In order to negative exclusive use, contemporaneous use within the ten years next preceding the passage of the act must be shown. Oswego Maize Products Company v. National Starch Company, 54.

17. SAME-GROUNDS FOR REFUSING REGISTRATION.-While the statute provides that any one who believes he would be damaged by the registration of a mark may oppose registration of the same, registration cannot be refused by the Office unless the opposer shows that the mark does not come within the registrable marks specified in section 5 of the Trade-Mark Act. Id. 18. PRACTICE-REGISTRATIONS UNDER THE INVALID ACT OF 1870 WILL BE DISREGARDED.—In view of the fact that notice of the application for registration of a trade-mark is published in the OFFICIAL GAZETTE and since the act of 1905 provides that any person who believes he will be damaged may file an opposition, Held that the burden should not be placed upon an applicant for registration to show the abandonment or non-use of a mark registered under the act of 1870, and that registration under the Invalid Act of 1870 should no longer be held a bar to the registration of a trade-mark. Ex parte HavanaAmerican Company, 61.

19. REGISTRATION OF GEOGRAPHICAL MARKS PROHIBITED.-Section 5 of the Trade-Mark Act of 1905 is broad enough to prohibit the registration of any word that has an exclusive geographical significance or that would suggest any particular geographical location. *In re Crescent Typewriter Supply Co., 318.

20. "ORIENT"-GEOGRAPHICAL.-The word "Orient" is generally understood to refer to certain Eastern countries, and, as applied to ink-ribbons and carbonpaper, Held to be geographical and not registrable. *Id.

21. SAME-SAME.-A mark for ink-ribbons and carbon-paper consisting of the word "Orient" inclosed in`a wreath, the letters E and I of the word being printed as a monogram, Held not registrable under section 5 of the TradeMark Act of 1905, as the word "Orient" is geographical. *Id.

22. "Shredded WHOLE WHEAT"-DESCRIPTIVE.-The words "Shredded Whole Wheat" as applied to certain food preparations Held to be descriptive, and therefore incapable of appropriation as a trade-mark. *The Natural Food Company v. Williams, 320.

23. OPPOSITION-EXCLUSIVE USE-CHaracter of USE BY OPPOSER.-In determining if applicant's use of a mark has been "exclusive” within the meaning of section 5 of the Trade-Mark Act it is immaterial whether the opposer used the mark as a trade-mark or merely in a descriptive sense. *Id.

24. SAME TESTIMONY.-The fact that the opposer built machines to produce shredded whole wheat and actually produced and sold such an article is sufficient corroboration of his testimony that the boxes in which the product was packed were marked "Shredded Whole Wheat." *Id.

25. SAME NAME OF APPLICANT.-The applicant, Woodbury, having given opposer the exclusive right to use certain trade-names and a trade-mark which had been associated for many years with applicant's name, Held that he is not entitled to register a mark of which the name "Woodbury" constitutes a prominent feature for goods of the same descriptive properties. The Andrew Jergens Co. v. Woodbury, 70.

26. SAME ALLEGATIONS-NOTICE OF.-Where an application for registration of a trade-mark alleges that the mark had been used on "perfumery, toilet powder, and talcum powder," a notice of opposition which alleges that the opposer used the same mark on perfumeries is sufficient to warrant the acceptance of proof. Oakley & Company v. Babcock, 77.

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