That he (the opposer) did not use the words as a trade-mark, but merely in a descriptive sense is of no moment. He, in common with all other manufacturers of shredded whole wheat had the same right properly to designate their product as did The Natural Food Co. the applicant. In Johnson v. Brandau, (C. D., 1909, 298; 139 O. G., 732; 32 App. D. C., 348,) where an attempt had been made to incorporate as a feature of the trade-mark the word "Asbestos," the opposition was sustained, although the opposer had used the words merely as a trade-name. The Court, speaking through the Chief Justice, said: If registration be allowed, it becomes prima facie evidence of the applicant's ownership of it as a valid trade-mark, * * * in any action which he may institute against the opposer or others who may use the word as a general trade-name for similar articles. * * * Having used the word as such a trade-name, although not entitled to ownership of it as a trade-mark, we think it is permissible for the opposer to make opposition to the registration by the applicant. The court further said: When an applicant describes and illustrates his trade-mark and applies for its registration as so described, the Commissioner must likewise consider it in its entirety. We are of opinion that, in this case, he should have denied registration as claimed, giving the applicant, at the same time, an opportunity to amend by disclaiming and omitting the word objected to. This rule was reaffirmed in Electro Steel Co. v. Lindenberg Steel Co., (C. D., 1915, 144; 215 O. G., 977; 43 App. D. C., 270.) Again, in Fischbeck Soap Co. v. Kleeno Mfg. Co., (C. D., 1915, 158; 216 O. G., 663; 44 App. D. C., 6,) where as here an attempt had been made to register prohibited matter by filing a so-called disclaimer in the Patent Office, we said: The fact that the appellee has filed a disclaimer is of no consequence. The disclaimer would slumber in the archives of the Patent Office while the mark would be used as registered. That is to say, the disclaimer would make no difference to the public. Such a subterfuge ought not to be permitted. The facts alleged by the opposer clearly bring this case within the rule laid down in the first three cases above cited, for opposer alleges that for a number of years it has been extensively engaged in the manufacture and sale of linoleum, which it always has advertised and described as such; in other words, that it has used this mark as a trade-name, as it has a right to do. This is a sufficient averment of interest, since under the statute no one may abridge that right. The tribunals of the Patent Office evidently failed to distinguish between the attempted registration of a technical trade-mark and a descriptive name. In the former, the opposer must show actual trade-mark use; in the latter, a showing of use as a trade-name is sufficient. Irrespective, therefore, of the question of alleged fraudulent use of the mark by the applicant, we are clearly of opinion that the oppo sition should have been sustained. The statute prohibits the registration of descriptive words, and yet the effect of the action of the Patent Office would be to give the applicant all the benefits of a registration, for the mark which would go out to the public would contain the prohibited words and, as stated in Fischbeck Soap Co. v. Kleeno Mfg. Co., (C. D., 1915, 158; 216 O. G., 663; 44 App. D. C., 6,) the disclaimer would slumber in the archives of the Patent Office. Indeed, but for the prohibited words there really would be no mark at all, since there would remain the entirely meaningless black figure. It is perfectly apparent that this meaningless black figure was employed as a vehicle by which there could be incorporated in the mark prohibited descriptive matter. Having in mind, therefore, the intent and purpose of the Trade-Mark Act, we repeat what we said in Johnson v. Brandau, (C. D., 1909, 298; 139 O. G., 732; 32 App. D. C., 348,) that the applicant should have been required to omit the objectionable matter from its mark. The decision is reversed. Reversed. FARR AND BAILEY MANUFACTURING COMPANY V. RINGWALT LINOLEUM WORKS. THOMAS POTTER, SONS & CO., INCORPORATED, v. RINGWALT LINOLEUM WORKS. COOK'S LINOLEUM COMPANY v. RINGWALT LINOLEUM WORKS. ARMSTRONG CORK COMPANY v. RINGWALT LINOLEUM WORKS. THE AMERICAN LINOLEUM MANUFACTURING COMPANY V. RINGWALT LINOLEUM WORKS. THE GEO. W. BLABON. CO. v. RINGWALT LINOLEUM WORKS. ROBB, J.: Decided February 5, 1917. These appeals involve substantially the same facts that were involved in the case just decided, and were to abide the decision therein. The decision in each case, therefore, will be reversed. Reversed. [Court of Appeals of the District of Columbia.] IN RE TRAVILLA. Decided January 29, 1917. 238 O. G., 649; 46 App. D. C., 36. PATENTABILITY-PROCESS OF CONSTRUCTING ROADS. Claims Held to be unpatentable in view of the art of record. Mr. James A. Carr for the appellant. Mr. W. R. Ballard for the Commissioner of Patents. SHEPARD, C. J.: This is an appeal from a decision of the Patent Office, rejecting the following claims in an application for a patent: 1. The improvement in the process of constructing roads which consists in spreading, raking, and rolling a course of stone, spreading and rolling a second course of stone on said first course, the stones of said second course being smaller than the stones of said first course and being spread in a predetermined quantity equal to the quantity which can be rolled tightly into said first course and below the surface thereof, and applying a penetrating bitumen binder to said course. 2. The improvement in the process of constructing roads which consists in forming a bond between the constituent parts thereof by applying thereto a coat of tar, and then applying a binder of asphaltic cement. 3. The improvement in the process of constructing roads which consists in spreading a course of stones of comparatively large size, spreading on said first course a second course of stones of smaller size, rolling the stones of said second course tightly into the spaces between the stones of said first course and below the surface of said first course, applying liquid tar, and then applying liquid asphaltic cement. 4. The improvement in the process of constructing roads which consists in rolling courses of stones together, the size of the stones of each of said courses being successively smaller than the stones in the preceding course, and the amount of stones in each of said courses being predetermined as the amount which can be rolled tightly into the surface of the unfinished road formed by the preceding courses, applying a coat of refined tar to the constituent parts of said courses, and then applying a binder of asphaltic cement. 5. The improvement in the process of constructing roads which consists in rolling courses of stone together, the size and amount of the stones in said course being proportioned to fill partially the void spaces in said unfinished road, applying an adhesive coat of a material capable of inseparably adhering to the stones in said courses, and then applying a cohesive binder capable of adhering to said adhesive coat. 6. The improvement in the process of building roads which consists in coating the constituent parts of a course of stone with a penetrating adhesive bitumen, and afterward bonding together the constituent parts thus coated with a cohesive bitumen. 7. The process of making roads which consists in spreading, raking, and rolling a course of stone, spreading and rolling on said first course a second course of stone, the stones of said second course being smaller than the stones of said first course, the quantity of stones of said second course being predetermined as the quantity which will enter tightly into the spaces between the stones of said first course, then applying a bituminous cement to the unfinished road thus formed and finally rolling into the spaces between the stones of said unfinished" road other still smaller stones. 8. The process of making roads which consists in rolling together a series of separately applied courses of stone, the size and amount of the stones in each of said courses being proportioned to fill partially the void spaces in the upper part of the road, in applying a coat of tar to the constituent parts of the upper part of said road, and then filling the spaces between said constituent parts with a binder of asphaltic cement. 9. The improvement in the process of constructing roads which consists in making a base, laying a course of stone on said base, raking and rolling said ́ course, and partially filling the void spaces in said course by rolling into the surface of said course other courses of stone the stones in each of said other courses being proportioned in size and amount according to the size and amount of the void spaces in said course so as to form a road body having inherent stability. 10. The process of constructing roads which consists in spreading a course of comparatively large stone over a base, raking and rolling said course, the stone in said course constituting the major portion of the stone in the completed road, spreading on said first course a second course whose stones are smaller than the stones in said first course, rolling the stones of said second course tightly into the spaces between the stones of said first course, applying hot tar to said stones, applying heated asphaltic cement after said tar has set, spreading a third course of stone of smaller size than the stones in said second course, rolling the stones of said third course tightly into the interstices of the partly formed road, and spreading and rolling a fourth course of still smaller stone. 11. The process of constructing roads which consists in spreading a layer about five inches thick of stones of a size from three inches to one and threequarters inches, raking and rolling said stones, spreading and rolling on said layer a comparatively small quantity of stones of a size of from one and onehalf inches to three-quarters of an inch, applying hot tar to the partly formed road, then applying heated asphaltic cement to said partly formed road after said tar has set spreading and rolling a comparatively small quantity of stones of a size from one-half of an inch to one-quarter of an inch, and then spreading and rolling a small quantity of stone of still another smaller size. 12. A road composed of stone graded in size and having the amount of each size proportioned to fill partially the void spaces in said road, an adhesive coat on said stone, and a cohesive binder between said stone. 13. A road composed of stone, an adhesive coat of tar on said stone, and a cohesive binder of asphaltic cement between said stone. 14. A road composed of stone, the larger stones of said road being at the top of said road, the space between said larger stones being partially filled by smaller stones, the stones in the upper part of said road having a coat of tar thereon, the spaces between said stones in the upper part of said road being occupied by asphaltic cement. 15. A road composed of stones of different sizes, the different sized stones being interlocked with one another to form a body having the amount of void space therein sufficiently small to prevent internal displacement under traffic, an adhesive coat of a material capable of inseparably adhering to said stones, and a cohesive binder between said stones of a material capable of adhering to said adhesive coat. The decisions of the various tribunals of the Office discuss the questions raised by the applicant very fully. They cite a patent to Warren, March 11, 1902; Warren, May 5, 1903; Badger, August 21, 1906; and an old English patent to Cassell, 1834, and, also, Bulletin 98 of the United States Department of Agriculture, Office of Public Roads, issued December 12, 1912, page 10, section 6. The experiment noted by the United States Department of Agriculture, taken in connection with the various patents cited, was considered to show a complete anticipation of the invention claimed by the applicant. We agree with the conclusions of the Commissioner, and content ourselves with referring to the several decisions of the Office which are found in the record. The decision is affirmed. Affirmed. [Court of Appeals of the District of Columbia.] IN RE MATTULLATH. Decided February 5, 1917. 238 O. G., 650; 46 App. D. C., 143. 1. PATENTABILITY-FLYING-MACHINE. Claims Held to be unpatentable on the ground of inoperativeness. 2. SAME--RES ADJUDICATA. The decision in in re Mattullath (C. D., 1912, 490; 179 O. G., 853; 38 App. D. C., 497) was directed to the question of abandonment, and the question of operativeness was not passed upon. Mr. W. H. Swenarton for the appellant. Mr. W. R. Ballard for the Commissioner of Patents. ROBB, J.: This is an appeal from a decision of the Commissioner of Patents rejecting ten claims of an application for patent. Claims 1, 3, and 10 are here reproduced: 1. In a flying machine, the combination with a supporting body and the aeroplane mounted thereon, of supporting stanchions composed of vertical uprights, keels of hollow ship-shaped cross section united at a distance apart by a vertical series of transverse members constituting aeroplanes and stiffening members. 3. In a flying machine of the character described, the herein described means for promoting its lateral stability during flight, the same consisting in the combination with the fixed supporting aeroplanes thereof, of two boat-shaped cars extending longitudinally of the flying machine adjacent its outer edges, said boats being widely separated and dividing between them the principal part of the weight so as to increase the moment of inertia of the vessel. 10. In a flying machine of the aeroplane type, the combination of a plane supporting means, elevation controlling means movable about a transverse horizontal axis of the machine, laterally arranged stabilizing means positioned on opposite sides of the longitudinal axis of said machine, and a steering rudder operatably connected with said machine. The alleged invention, as will be gathered from a reading of the above claims, relates to a heavier-than-air flying-machine, and the rejection was on the ground of inoperativeness. About 1903 the application was held abandoned for failure to respond to Office action within the year provided by law. Several years later, upon the refusal of the Commissioner to grant a petition to revive |