Mr. Albert E. Davis for Zimmer. (Mr. Frank J. Seabolt of counsel.)

Mr. Charles E. Lord for Calderwood.

BILLINGS, Assistant Commissioner:

This is an appeal by Gale from the decision of the Examiner of Interferences rendered January 7, 1908, setting aside a judgment rendered against O'Brien on the record on December 16, 1907, and setting the case down for final hearing upon the right of the parties senior to O'Brien to make the claims.

In the case of Lemp v. Randall and Bates v. Thomson (C. D., 1906, 42; 120 O. G., 905) it was held that no appeal would lie from a decision of the Examiner of Interferences denying a motion for judgment on the record, as such decision is not a final determination that judgment will not be rendered in favor of the moving party. For a similar reason it is thought that where the Examiner of Interferences sets aside a record judgment and fixes a time for final hearing no appeal should be allowed from such action.

No reason is seen why the action of the Examiner of Interferences should be reviewed in the exercise of the supervisory authority of the Commissioner, especially as Zimmer and Calderwood, the parties alleged by O'Brien not to be entitled to make the claims, make no objection thereto.

It may be stated here that the purpose of Rule 130 is to allow a party whose motion that his opponents have no right to make the claims has been denied to urge the question before the Examiner of Interferences and on appeals from his decision. This purpose would be defeated if it were held that because the Examiners-in-Chief had held on appeal from a decision of the Primary Examiner on a motion to dissolve that a party had a right to make the claims the question could not be raised before the Examiner of Interferences at final hearing.

The appeal is dismissed.

ROWE v. BRINKMANN.

PATENT INTERFERENCE.

Decided February 25, 1908.

133 O. G., 515.

1. INTERFERENCE-MOTION TO DISSOLVE-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.

2. SAME-SAME-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.

APPEAL ON MOTION.

ELECTROMECHANICAL DEVICE.

Messrs. Raymond & Barnett for Rowe.

Mr. Claud N. Bennett and Messrs. Wilkinson, Fisher & Wither spoon for Brinkmann.

BILLINGS, Assistant Commissioner:

This is an appeal by Rowe from a decision of the Examiner of Interferences refusing to transmit a motion to dissolve.

The motion was based on two grounds-first, that there was such informality in declaring the interference as would preclude a proper determination of the question of priority of invention; second, that Brinkmann had no right to make the claim.

The reasons alleged in support of the first ground are that the oath filed by Brinkmann is defective and that his original specification is informal. The informality of the specification is also alleged in support of the second ground.

Transmission was denied on the ground that the matter of a proper oath to an application is an ex parte one, which cannot be considered on a motion to dissolve, and on the further ground that the alleged lack of right of Brinkmann to make the claim was not supported by the specific facts upon which the contention is based, and that the motion was therefore informal.

The Examiner of Interferences was clearly right in refusing to transmit the motion so far as it related to the oath. It is well settled that the matter of a proper oath is an ex parte one and offers no ground for dissolution, and this for the reason that should the interference be dissolved on such a ground the applicant could file a new oath and the interference would have to be redeclared.

As to Brinkmann's original specification, while the Examiner held that it was informal he made no objection that it was not a proper basis for the substitute specification which was filed later. If by alleging that Brinkmann had no right to make the claim on account of the informality of the original specification Rowe meant to allege that the substitute specification contained new matter and the claims could not be based on the original disclosure, he should have so framed his motion. In its present form the motion is too indefinite to be transmitted.

While, as pointed out above, the motion to dissolve cannot be transmitted, it is thought that as Brinkmann has filed no preliminary

statement he should file a proper oath as a condition precedent to the continuation of the interference. The Examiner of Interferences will therefore suspend the interference for a period of thirty days, and if within that time Brinkmann does not file such an oath the interference will be dissolved.

The decision of the Examiner of Interferences is affirmed.

OAKLEY & COMPANY v. BABCOCK.

OPPOSITION.

Decided December 23, 1907.

133 O. G., 761.

1. OPPOSITION—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.

2. SAME-APpeal from DECISION DENYING MOTION TO DISMISS.

An appeal from a decision of the Examiner of Interferences denying a motion to dismiss a notice of opposition will not be allowed.

3. SAME-AMENDMENT TO NOTICE OF.

An amendment to a notice of opposition setting forth that the opposer believes he would be damaged by the registration of the mark Held to have been properly admitted.

APPEAL from Examiner of Interferences.

TRADE-MARK FOR PERFUMERIES,

Mr. John J. Schwartz for Oakley & Company.

Mr. Simon Lyon and Mr. Hubert E. Peck for Babcock.

MOORE, Commissioner:

This is an appeal by Babcock from the decision of the Examiner of Interferences denying her motion to dismiss the original and amended notices of opposition filed by Oakley & Company.

The record shows that a demurrer was filed to the original notice of opposition which was overruled by the Examiner of Interferences, with leave, however, to the opposers to file an amended notice of opposition specifically alleging that said opposer would be injured by the registration opposed. An amended notice of opposition was filed in which the former pleadings were elaborated throughout. The applicant then filed a motion to dismiss both the original and amended notices of opposition. The Examiner of Interferences de

nied the motion, holding that in so far as it related to the original notice of opposition the question was res adjudicata by reason of his decision overruling the demurrer, and, further, that the amended notice of opposition did not include new matter. He fixed a limit of appeal from this decision. The motion to dismiss the original and amended notices of opposition is analogous to a demurrer to these pleadings. In the case of Drevet Manufacturing Company v. Liquozone Company (C. D., 1906, 237; 122 O. G., 3014) it was held that an appeal from the decision of the Examiner of Interferences overruling a demurrer to a notice of opposition would not be entertained except under circumstances of such unusual or extreme character as would justify the exercise of the supervisory authority of the Commissioner. For the same reasons an appeal from a decision denying a motion to dismiss a notice of opposition should not be allowed.

In view, however, of the fact that the Examiner of Interferences set a limit of appeal in the present case the merits of the present appeal have been considered. The first three grounds of the appeal allege an error of the Examiner of Interferences in not holding that the opposition is restricted solely to the use of the trade-mark upon perfumeries," whereas the application for registration covers perfumeries, toilet powder, and talcum powder."

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The original notice of opposition alleges that the trade-mark was used by the opposer and others as applied to "perfumeries, etc.,” and submitted certain labels in connection therewith, which it was alleged had been used by the aforesaid parties for a period of thirty years. These labels show the mark as applied to perfumeries and also to sachets. Whether the opposer has used the trade-mark upon all the goods mentioned in the application for registration is a matter which can be determined upon proof presented, and it is believed that the allegations in the notice of opposition are sufficient to warrant the acceptance of such proof. In any event proof that the applicant is not the owner of the trade-mark in issue as applied to perfumeries would bar the registration of the mark as now presented, and in such event the notice of opposition would be sustained. For this reason the notice of opposition should not be dismissed.

The fourth and fifth grounds of appeal are that the Examiner of interferences erred in not dismissing the original notice of opposition as insufficient because there is no positive allegation of belief as to damage by such registration. As stated by the Examiner of Interferences, this question is res adjudicata in view of his decision overruling the demurrer. Furthermore, it is well settled that amendments to pleadings to set forth jurisdictional averments are liberally permitted, and in this case the terms of the original notice of opposi

tion are clearly sufficient to warrant the amendment permitted by the Examiner of Interferences.

The sixth ground of appeal is that the Examiner of Interferences erred in not dismissing the amended notice of opposition as setting up new grounds. For the reason stated by the Examiner of Interferences I am of the opinion that the amended notice of opposition does not set forth material matter not included in the original pleading. The decision of the Examiner of Interferences is affirmed.

IN RE BAYLE, JR.

Decided February 11, 1908.

ACCESS TO PENDING APPLICATION.

133 O. G., 762.

A corporation which held an exclusive license to make and use an article disclosed in certain applications went into bankruptcy, and the trustee in bankruptcy included this license in the assets of the company. Held that the purchaser of said assets at the trustee's sale did not acquire such a title to the license as will entitle him to be permitted to inspect these applications.

ON PETITION.

Messrs. Knight Bros. for George A. Bayle, Jr.

Mr. N. M. Goodlett for Edwin E. Johnson.

BILLINGS, Assistant Commissioner:

This is a petition by George A. Bayle, Jr., that he be given permission to inspect the files of two applications of Edwin E. Johnson. These applications were assigned to M. J. Pope and Frank D. Thorne, who gave an exclusive license to the Mazo Manufacturing Company, of St. Louis, Mo., a corporation of Missouri, to manufacture and sell the compound disclosed in these applications and to practice the process of compounding the same. This company went into bankruptcy, and the trustee in bankruptcy sold to George A. Bayle, Jr., all the assets of the said Mazo Manufacturing Company, and he included in the assets the license above referred to.

It is by virtue of this sale that Bayle claims to be entitled to inspect these Johnson applications. The petition is opposed by the assignees of Johnson on the ground that Bayle never acquired any title to the license.

The right of a trustee in bankruptcy to take title to patent property is defined in the Bankruptcy Act of July 1, 1898. It was held by