vinced that this test demonstrated the utility and completion of the invention; in other words, that it amounted to reduction to practice. There is no warrant, in our view, for the criticism of the Board of Examiners-in-Chief, since there is nothing in the specifications or claim limiting this device to use on an automobile, but, even if there was, it is a matter of common knowledge that such horns now are usually located under the hoods, where they are protected. Our conclusion that this test amounted to a reduction to practice is in accord with our prior rulings. (See Stanbon v. Howe, C. D., 1910, 349; 153 O. G., 823; 34 App. D. C., 418; Gaisman v. Gillette, C. D., 1911, 319; 165 O. G., 244; 36 App. D. C., 440; Hopkins v. Peters, C. D., 1914, 116; 199 O. G., 1243; 41 App. D. C., 302; Manly v. Janney, ante, 109; 235 O. G., 323; 45 App. D. C., 516. Having reduced the invention to practice, priority must be awarded Aufiero unless he concealed or abandoned his invention. We find no evidence that he did either. The reduction to practice was in the presence of several witnesses, and they were put under no injunction as to secrecy. Soon thereafter the device embodying the issue was exhibited to Mr. Rubes with a view to having it exploited, and the only reason this was not done was because Mr. Rubes preferred an electrically-operated horn. Obviously, Aufiero was not in a position to dictate as to which device should be taken up first. The mere fact that he delayed the filing of his application is not sufficient to deprive him of the fruits of his discovery. There is no evidence that he was induced to file because of any activity on the part of Monnot, nor are there any circumstances tending to impugn his good faith in any way. The facts, therefore, bring him within the rule laid down in Gaisman v. Gillette, (C. D., 1911, 319; 165 O. G., 244; 36 App. D. C., 440;) Hubbard v. Berg, (C. D., 1913, 460; 195 O. G., 818; 40 App. D. C., 577;) Stewart v. Thomas, (C. D., 1914, 180; 202 O. G., 1263; 42 App. D. C., 222;) and Pierman v. Chisholm, (C. D., 1916, 159; 225 O. G., 1106; 44 App. D. C., 460.) The decision is reversed and priority awarded Aufiero. [Court of Appeals of the District of Columbia.] Decided May 26, 1917. 242 O. G., 751; 46 App. D. C., 449. 1. TRADE-MARKS-REGISTRATION- -MISREPRESENTATIONS. "One cannot maintain a bill in equity for the protection of a trademark unless his own use of the mark has been honest and free from false and fraudulent representations touching the article sold under the mark; and it is the duty of the Patent Office to refuse registration to one whose use of the mark has been of such a character that a court of equity would, upon the foregoing principle, deny him protection," (citing Levy v. Uri, C. D., 1908, 461; 135 O. G., 1363; 31 App. D. C., 441.) 2. SAME-SAME-SAME-PRIOR USE. When appellee's labels stated that the face-cream to which they were applied was purely vegetable and would remove freckles or wrinkles, but upon examination she persistently refused to state whether the cream did not contain mineral ingredients and whether she had any ground for believing it would remove freckles or wrinkles, Held her refusal fairly shows the statement concerning the removal of wrinkles and freckles to have been made without regard to their truth and justifies the finding that it was not purely vegetable and Held that while the mark or name was not itself deceptive the accompanying statements were and the registration on the ground of prior use should have been denied. Mr. Geo. W. Ramsey for the applicant. Mr. C. P. Griffin and Mr. E. C. Brown for the appellee. STAFFORD, J.: One cannot maintain a bill in equity for the protection of a trade-mark unless his own use of the mark has been honest and free from false and fraudulent representations touching the article sold under the mark; and it is the duty of the Patent Office to refuse registration to one whose use of the mark has been of such a character that a court of equity would, upon the foregoing principle, deny him protection. Such was the ruling of this court in Levy v. Uri (C. D., 1908, 461; 135 O. G., 1363; 31 App. D. C., 441), where the authorities were cited and the ground of the decision fully explained. The present case falls clearly within the principle, for the appellee's use of the trade-name, even if it was prior to the use of the same by the appellant, was such a use as would have led a court of equity to refuse her protection. The article is a face-cream. The appellee's labels stated that it was purely vegetable and would remove freckles and wrinkles. Yet, when examined as a witness touching the truth of these statements and her honesty in making them, she persistently refused to state whether the cream did not contain certain mineral ingredients and whether she had any ground for believing that the cream would remove freckles or wrinkles. Her testimony fairly shows that she made the statements concerning the removal of freckles and wrinkles without any regard to their truth and merely because she considered the label in that form attractive, and her refusal to state whether the cream was in fact purely vegetable justifies and in our opinion requires the finding that it was not purely vegetable. (Keeley Institute v. Leslie E. Keeley Co., 155 Fed. Rep., 964.) As remarked by Robb, J., in Levy v. Uri, supra: It was the purpose of the act to protect honest manufacturers and dealers, because in so doing the public would in turn be protected. It was not the purpose of the act to recognize the right of any person, firm, or corporation to deceive the public by the use of a deceptive mark. In this case, it is true, the mark or name itself was not deceptive, but the accompanying statements were, and their deceptive character is enough to disentitle the appellee to claim priority upon the ground of such use. The appellant's registration should have been allowed to stand and the appellee's petition to be allowed registration on the ground of prior use should have been denied. Reversed. [Court of Appeals of the District of Columbia.] IN RE MINOR. Decided January 2, 1917. 242 O. G., 993; 45 App. D. C. 555. 1. PATENTABILITY-ANTICIPATION. Claims for a can-opener the distinctive features of which were a curved forward cutting edge related both in construction and position to a pivot edge or fixed axis of revolution as described and a spherically-shaped blade positioned as described with relation to the pivot edge or fixed axis of revolution were Held anticipated by a French patent for a can-opener describing a blade always forming a constant angle with the cover of the can, whatever the inclination of the handle, and pointing out how to plot a tool mathematically, so as to bring about this relation of the parts, and a British patent describing a can-opener with a curved cutting edge, but with a fixed pivot to form a fulcrum and to grip the edge of the tin can or box to facilitate the feed" of the knife. 66 2. SAME SUBSTITUTION OF PARTS. It is not invention to merely make a selection of old parts which bear substantially the same relation to the operation of a tool that they did to tools in which they were used separately before the supposed invention. 3. SAME-SAME-DEGREE. No new result is attained by a can-opener because it has a longer cut than one already patented, where the latter cuts more rapidly, as the entire operation of opening a can may be effected as quickly by one as the other. 4. SAME JUDICIAL NOTICE. Tool-handles designed to fit the hands are very old and of infinite variety, and the court will take judicial notice of that fact in sustaining a ruling of the Patent Office rejecting a claim for a handle of a can-opener so shaped as to fit the hand and to make it light in weight. 5. SAME-INTERDEPENDENT CLAIMS. Where an applicant concedes that certain devices described in three of his claims are old and states that they are claimed only in combination with the devices of a fourth claim and that claim is rejected, the other three claims fall with it. Mr. James L. Norris and Mr. C. A. Bateman for the appellant. McCoy, J.: This is an appeal from a decision of the Patent Office rejecting claims 1 to 8 inclusive of an application for a patent. The application states that the invention for which a patent is claimed relates to can-openers and has reference more particularly to the class comprising a lever of the first order with flat blades as well as those which are convexed. For the purposes of this decision it will be sufficient to set forth in full claims 1, 2, and 4, which are as follows: 1. In a device of the class described, a blade having projecting from its outer surface a pivot with an edge forming a fixed axis of revolution positioned normally to said surface, the blade having also a curved forward cutting edge, lying in said surface, and being a curve so generated and positioned, on a flat pattern, with relation to the projection of said axis, that a straight line drawn from the projection of said axis to any point on said curve will form a substantially constant angle approximating 45 degrees with a tangent to said curve at the same point. 2. In a device of the class described, a blade having a spherical outer, convex surface, containing a forward cutting edge, and, projecting from said surface, a pivot with an edge forming a fixed axis of revolution, said axis being positioned radially with relation to said surface. 4. In a device of the class described, a handle having in combination, a curving end and back to fit the hollow of the hand, curves beneath to receive and fit the fingers in grasping a flat portion at proper angle to receive a blade, and a ridge on the back of the handle, said handle being apertured to lighten and strengthen same. The object of the invention is to provide a can-opener which will cut out the top of a can easily and quickly making a clean smooth cut close to the vertical walls of the can. The application states that the efficiency of the can-opener depends upon the relation (of construction and position) between the curved forward cutting edge and the pivot edge (the axis of revolution) projected at a certain point in the tool. It describes the method of generating the curve of the cutting edge with reference to a flat blade, and says that a pattern of the flat blade having been obtained, it can be convexed into the desired spherical shape, giving a pattern for the spherically-shaped blade, the projection of which will differ but slightly from the pattern of the flat blade; that the angle of forty-five degrees is taken for the constant angle between the straight line from the center of revolution to any point on the curve and a tangent to the curve at the same point because that angle combines the compatible maxima of advantage or facility in cutting and of speed in cutting; that it is the proper angle for ordinary uses of the tool but that the constant angle approximating forty-five degrees may be substituted; and, further, that the claims are made broad enough to cover a cutting edge constructed and positioned with reference to any angle approximating forty-five degrees. The application with some unsubstantial amendments states particularly in regard to the device to which the second claim applies as follows: For use on cylindrical cans the blade of the can opener has on its outer surface the form of a sphere of same diameter as that of can to be opened, or of most commonly used size of can, this outer or convex spherical surface of the blade (containing the curved forward cutting edge) being positioned with relation to the pivot edge, or fixed axis of the can opener in operation, so that a diameter of the sphere of which the outer or convex surface of the blade is a part, will coincide (in position and direction) with said axis of revolution, and so that throughout the revolution of the can opener, in operation, the spherical outer or convex surface of the blade (including every point of the curved forward cutting edge) will pass tangent to the cylindrical wall of the can, just at the rim; whereby the top of the can will be cut by said cutting edge just at or close to the rim and the blade be held steadily in position, throughout the operation of the tool. It is stated further that the tool designed for cutting cylindrical cans must have the shape of a sphere, with a diameter equal to the diameter of the can to be opened, coinciding (in position and direction) with the convexed axis of revolution of the tool in operation, the result of which it is said will be that in all positions of the revolving movements of the can-opener in operation the blade will everywhere fit snugly against the cylindrical wall of the can. It is stated however that in practical operation it is sometimes convenient to lean the handle a little outward to avoid obstructions on the inner wall of the can, such as a seam, and that the operator can with his hands so control the position of the tool and blade as to maintain a proper adjustment of the blade where such adjustment is not perfectly effected by means of the spherical shape and the positioning of the blade and by a flange on the end of the pivot, which flange in operation is on the outside of the can. The application states also that although for use on cylindrical cans the proper shape of the outer or convexed surface of the blade is that of a sphere with the diameter equal to the diameter of the can to be opened, a blade constructed or shaped to any particular diameter will work satisfactorily on cans with diameters varying considerably above and below the diameter of the construction; and that the practical utility of the can-opener would be increased by adopting ordinarily the diameter of the most commonly used size of can; and, further, that the spherically-shaped blade is available and intended for use on curved cans which are not cylindrical, though it is not as perfectly adapted to the latter as to cylindrical cans. The two main and distinctive features of his invention are said to be, first, the curved forward cutting edge of the peculiar construction and positioning described, that is, related both in construction and position to the pivot edge or fixed axis of revolution as de |