Section 5 of the Trade-Mark Act provides that no mark consisting merely of words—

which are descriptive of the goods with which they are used, or of the character or quality of such goods

shall be registered under the terms of the act, and the only question before the court on this appeal is whether the words "Twin-Six" as applied to motor-vehicles driven by gasolene-engines are descriptive of the character or quality of such motor-vehicles. The contention of the appellant is that the words "Twin-Six" made into a compound word and applied to a motor-vehicle do not indicate definitely any character, and do not describe definitely any quality, of such motor-vehicle, but that the words constitute merely a catchy phrase to identify the particular make of cars of the appellant. And much stress is laid in the appellant's brief on the fact that numerals when applied to motor-vehicles in referring to them are used for such a variety of purposes as to have no definite meaning.

Whatever may be the lack of definite and descriptive meaning in numerals generally when applied to motor-vehicles it is not at all necessary in this case to consider. The description of a motor-vehicle by any one of the particular numbers "four," "six," or "eight" is very definitely understood in the automobile trade. It is understood by both dealers and purchasers that such numbers always describe the number of cylinders present in the gasolene-motor of the motor-vehicle. One just as certainly knows that a Cadillac "eight" is a Cadillac motor-vehicle with a motor of eight cylinders as one knows that a description of a Cadillac as a red Cadillac is intended to convey the idea of a Cadillac painted red. The words "eight' and "red" are equally descriptive and no one would think of attempting to register either of them as a trade-mark.

The word "six" when applied to a motor-vehicle, as a matter of common knowledge, therefore, means a motor-vehicle with a gasolene-motor of six cyilnders. Consequently, no one would contend that the single word "six" could be trade-marked so that the Packard Motor Car Company, the appellant, could have the exclusive use of the word in the motor-vehicle trade and describe its car as the Packard "six," thereby preventing any other manufacturer of a six-cylinder motor-vehicle from using the ordinary descriptive word "six" in order to indicate to the trade the fact that his motorvehicle was operated with a gasolene-motor containing six cylinders. The word "twin" has also a definite and clear meaning in the English language. It indicates two, or a pair of similar things or persons. Therefore, when one speaks of a motor-vehicle as a "twinsix" the words are generally understood as describing a motor-ve

hicle in which the gasolene-motor contains two series of cylinders of six cylinders each.

The Examiner of Trade-Marks and Designs, in his statement refusing registration of the compound word "Twin-Six" in this case, accurately states the significance of "Twin-Six" as a descriptive term. He says:

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The term "twin" has long been used as a technical term in the field of motive power. The dictionaries, periodicals relating to mechanics, and works relating to motive power, disclose such terms as "twin engine," twin cylinder," twin screw," "twin valve." The significance of the term in this field is well understood. "Twin" is defined in the Century Dictionary as two, a pair, a couple, and when applied to mechanics it is understood to denote two similar mechanisms, intimately united or related in action, and usually symmetrically arranged with respect to each other. The question of the descriptiveness of a mark must be considered in the light of its significance to the purchaser, and it is the opinion of the Examiner that when a customer purchases a "twin-six" automobile, he expects to get one with twelve cylinders placed in two groups of six each, and that if he were to receive a car containing less than twelve cylinders he would feel that he had been deceived. This is considered to be the acid test as to the descriptiveness of the term. The decision will be affirmed and this decision certified to the Commissioner of Patents.

1. INTERFERENCE-ISSUE-CONSTRUCTION OF.

It is a familiar rule that a party will not be permitted to narrow a claim to meet the exigencies of a particular situation. (Kirby v. Clements, C. D., 1915, 163; 216 O. G., 1319; 44 App. D. C., 12; Geltz v. Crozier, C. D., 1909, 313; 140 O. G., 757; 32 App. D. C., 324.)

2. SAME-SAME-SAME.

The issue construed broadly and D. Held to be entitled to make the claims and priorty awarded to him.

(For Commissioner's decision see ante, 74; 245 O. G., 277.)

Mr. T. Walter Fowler for the appellant.

Mr. F. L. Chappell and Mr. Otis A. Earl for the appellee.

ROBB, J:

This is an appeal from a decision of the Commissioner of Patents in an interference proceeding in which priority was awarded the appellee Dunkley.

1

The claims of the issue read as follows:

1. The process herein described of peeling fruits and vegetables, which process consists in subjecting the fruit or vegetable to a bath of disintegrating solution for the purpose of loosening the skin thereof; and then passing the fruit into the range of action of hydraulic sprays of sufficient force to remove the loosened skin.

2. The process herein described of peeling fruits and vegetables, which process consists in subjecting the fruit or vegetable to the action of a disintegrating solution having the capacity to disintegrate and loosen the skin thereof, and then subjecting the fruit or vegetable so treated to the action of fluid sprays and substantially coördinately therewith imparting motion to the fruit or vegetable.

The present application of Dunkley is a division of an apparatus application which was before us in Dunkley v. Beekhuis, (C. D., 1913, 362; 190 O. G., 267; 39 App. D. C., 494.) It there was contended by Beekhuis that Dunkley was not entitled to make the claims, the ground of the contention being that he did not rely solely upon water-jets as the peeling means. The court found, however, that the claims were broadly drawn and that they did not exclude other means. In the opinion, by the chief justice, it was said:

It is to be observed that none of the counts define the water-jets as constituting the sole peeling means. The counts of the issue are satisfied by a construction in which peeling water-jets enter into the operation of removing the skins, whether they be exclusively employed to remove the skins or not. But in neither machine as described and constructed are the water-jets shown to be the exclusive means of peeling.

Priority was awarded Dunkley.

It now appears that prior to the interference between Dunkley and Beekhuis there had been an interference between Beekhuis and Monte, the appellant herein, in which there was a judgment on the record to the effect that Beekhuis was the original inventor of the apparatus. It further appears that the Beekhuis and Monte patents are owned by the same interests.

On the declaration of the present interference the same sort of a motion was filed by Monte as was filed in the prior interference between Dunkley and Beekhuis. The Law Examiner, before whom this motion was heard, sustained it. Dunkley appealed to the Board of Examiners-in-Chief, where it was contended by Monte that—

at the time of making the claims there was no reason for further limiting them and no reason for defining the water as being the only means for removing the loosened skin,

The Board, one member dissenting, said:

It seems to be true that there was no art cited which required the limitation of these claims, and we know of no reason why they should now be given 16644°-18-16

a limited interpretation merely because it would enable Monte to avoid the issue of priority.

On appeal the Commissioner sustained the Board, saying:

It seems to be clear that the apparatus illustrated by Monte for practising his alleged process is the same as the apparatus of the Beekhuis patent. Whatever suggestions of modification may be contained in the Monte patent specification, the claims cannot be construed as excluding the use of the only apparatus illustrated with which to carry out the process. Therefore, if the Dunkley patent was rightfully in the Dunkley v. Beekhuis interference, as the court of appeals has held it was, the present Dunkley divisional application is rightfully in the interference at bar.

In due course priority on the record thereafter was awarded Dunkley.

In our view, the decision in Dunkley v. Beekhuis is controlling here. It is a familiar rule that a party will not be permitted to narrow a claim to meet the exigencies of a particular situation. (Kirby v. Clements, C. D., 1915, 163; 216 O. G., 1319; 44 App. D. C., 12; Geltz v. Crozier, C. D., 1909, 313; 140 O. G., 757; 32 App. D. C., 324.) In the drawing accompanying his specification Monte shows a shaking-table similar to that shown by Beekhuis in the prior interference, and in his specification he says that the fruit, after leaving the solution-tank, is to be advanced upon a movable carrier—

which, in practice, is best made of some open-work or reticulated construction, said carrier having either a shaking motion or an endless travel over suitably placed drums at the ends.

It thus will be seen that he contemplates either the use of this shaking-table, which we held in the prior interference to be substantially equivalent to the Dunkley brushes, or an endless wire belt which, as the Commissioner suggests, probably would produce about the same effect, (owing to the speed at which it is driven,) as the shaking-table; but, whether this latter suggestion is correct or not, we certainly would be going far to rule that Monte intended to exclude the use of the only means actually shown in his apparatus for practising the invention, for it is another familiar rule that, in reading a claim for the purpose of construing it, the specification and drawings must be considered. (Andrews v. Nilson, C. D., 1906, 717; 123 O. G., 1667; 27 App. D. C., 451; Knapp v. Morss, C. D., 1893, 651; 65 O. G., 1593; 150 U. S., 221.) In our view, these claims cannot be given the narrow interpretation now contended for by Monte.

It follows that the decision of the Commissioner must be affirmed. Affirmed.

A stocking having its upper portion folded upon itself and provided with registering selvaged openings buttonhole-stitched together Held patentable over the prior art.

2. SAME

DOUBT RESOLVED IN FAVOR OF THE APPLICANT.

Where the question of patentability is close, the doubt should be resolved in favor of the applicant (following in re Harbeck, C. D., 1913, 405; 191 O. G., 586; 39 App. D. C., 555.)

Mr. Curt B. Mueller and Mr. Geo. W. Ramsey for the appellant. Mr. W. R. Ballard for the Commissioner of Patents.

ROBB, J.:

Appeal from a decision of the Patent Office rejecting four claims, of which claim 4 is illustrative:

4. A stocking having its upper portion folded upon itself and provided with a plurality of selvaged openings in both body and fold portions, different pairs of openings in said body portion and fold respectively being adapted to register, each such registering pair of openings being button-hole-stitched together, for the useful purpose specified.

The question presented is whether it involves invention to provide buttonholes with selvage edges in addition to the old buttonholestitching for the purpose of reinforcing the edges of the buttonhole. The Examiner was of opinion that it does not

because it is a notoriously old expedient to selvage the edges of fabric in order to prevent raveling.

One member of the Board of Examiners-in-Chief was of the opinion that the claims do

involve patentable novelty inasmuch as no one heretofore, so far as the record shows, has suggested the idea of reinforcing selvages with stitching of any kind.

The majority of the Board, in a three-line opinion, expressed the view that a patentable combination had not been shown, while the Assistant Commissioner to whom the appeal was taken affirmed the decision, stating his reasons as follows:

Applicant has not been able satisfactorily to point out how the buttonhole stitch modifies the selvage or vice versa, and it is not apparent to me that these features in any patentable manner combine to modify each other, and for this reason I can find nothing patentable in the appealed claims.