THE COCO-COLA COMPANY U. CAVE,

Decided June 15, 1917.

240 O. G., 941.

1. TRADE-MARKS OPPOSITION-MOTION TO DISMISS.

An opposition should not be dismissed on motion and without opportunity of taking proofs except in a very clear case.

2. SAME-SAME-COCA-COLA AND Ko-Co-LEM-A.

Where the marks "Coca-Cola " and "Ko-Co-Lem-A" are used upon the same goods, have the same number of syllables, begin and end with the same syllables, and are in the same style of lettering, Held the marks are not so unlike that the opposition should be dismissed on motion without taking proofs.

APPEAL from Examiner of Interferences.

TRADE-MARK FOR SODA-FOUNTAIN SYRUP.

Mr. Harold Hirsch, Messrs. Reed and Rogers, and Mr. Francis H. Phelps for The Coca-Cola Company.

Mr. B. F. Hartz for Cave.

CLAY, Assistant Commissioner:

Appeal from dismissal of an opposition to registration of a trademark.

Ray Cave appears to have lately adopted and applied for registration of the term "Ko-Co-Lem-A" as a mark for soda-fountain syrup, the labels filed with his application showing also that he does business as the "Ko-Co-Lem-A Co." Registration was opposed by the Coco-Cola Co. on the ground that it has for many years used the similar trade-mark "Coco-Cola" for the same goods, having registered its mark in 1893, (No. 22,406.) The opposer also pointed out that its name "Coca-Cola " had always been written in a peculiar style of lettering, which the applicant has imitated. On a demurrer resting substantially on the contention of no confusing resemblance of the marks of the parties the Examiner of Interferences held that the common part of the marks-i.e., the term "Coca" or "Coko "is a common term descriptive of the cocoa-bean, and therefore not to be "regarded as the essential part of the mark of either party," wherefore he found the marks unlike and the case not open to question enough to go to proofs.

I think there has been too strict an analysis of the marks and too little weight given their whole significances. I can think of no proper reason why the applicant chose a term which uses the same number of syllables, begins and ends with the same syllables, and employs the same lettering, including the same initial and final

flourishes in the lettering. He is under suspicion because he did not take care to adopt a

mark by which the goods of the owner

other goods of the same class,

may be distinguished from

as contemplated by the statute, (sec. 5.) If he was really using

66

Coco" as a descriptive term, he might be naturally expected to call his goods "Lemakoco" rather than "Ko-Co-Lem-A." There should be opportunity for proofs.

The Examiner's ruling is reversed.

EX PARTE LINDAU.

Decided June 7, 1916.

241 O. G., 301.

1. PATENTABILITY-INVENTION-CONCRETE-FLOOR REINFORCEMENT.

A claim to a concrete floor resting on columns, with groups of parallel reinforcements in the floor extending from column to column, the middle members of a group being more closely spaced than the outer members, Held, to lack invention over a patent showing the reinforcing-rods extending in groups from column to column. If the stresses were found to be greatest over the columns, there would be no invention in multiplying the reinforcing-rods in the middle of the group.

2. SAME-SAME-SAME.

A claim to a concrete floor resting on columns, with groups of parallel reinforcing-rods extending from column to column, certain of the rods extending entirely through the lower part of the floor and others extending through the lower part of the floor between the columns and through the upper part of the floor near the columns, Held to lack invention over a patent showing the groups of rods extending from column to column and patents showing a similar arrangement of rods in the top and bottom of a floor.

APPEAL from Examiners-in-Chief.

REINFORCED-CONCRETE FLOOR CONSTRUCTION.

Messrs. Carr & Carr for the applicant.

WHITEHEAD, Assistant Commissioner:

This is an appeal from the decision of the Examiners-in-Chief affirming the action of the Primary Examiner finally rejecting claims 1, 4, 10, 12, and 13. Of these claims 1 and 12 are illustrative:

1. A floor construction comprising columns and a monolithic girderless floor slab of reinforced concrete, extending across said columns and being supported directly and entirely thereby, said slab being provided throughout with continuous metal reinforcement, said reinforcement comprising parallel rods arranged in groups wherein the middle members are spaced closer together than the outer members of the group, said middle members passing close to the axes of

the columns, there being a group of bars extending across each column and therefrom to and beyond every other adjacent column.

12. A building construction comprising columns and a girderless monolithic floor slab resting on said columns, said slab having intersecting reinforcing rods embedded therein parallel to the rows of columns, and other intersecting reinforcing rods embedded therein oblique to the rows of columns, some of said intersecting rods being arranged in the bottom region of the slab throughout their length, and other of said intersecting rods having their portions intermediate the columns in the bottom region of the slab and their portions adjacent to the columns in the top region of the slab, whereby said slab is stiffened intermediate its margins.

The references cited are: Hennebique, No. 611,907, October 4, 1898; Stragiotti, No. 882,216, March 17, 1908; Cowles, No. 969,039, August 30, 1910; Luten, No. 1,078,510, November 11, 1913; English patent to Turner, No. 21,631 of 1906.

The application discloses a reinforced-concrete floor resting upon columns, the reinforcements being arranged in groups extending from column to column. Claims 1 and 4 specify that the lateral spacing of the reinforcing-rods increases toward the edges of the groups, and the other claims specify that certain of the rods extend entirely through the lower portion of the floor, while others extend through the lower portion of the floor between the columns and through the upper portion of the floor over the columns.

The British patent and the patent to Cowles show floors in which the reinforcing-rods are arranged in groups extending from column to column. The other patents cited show beams or girders in which some of the reinforcing-rods extend throughout their length in the lower portion thereof and others are bent into the upper portion thereof, over the supports.

The Examiner rejected claims 1 and 4 on the ground that the expedient of rearranging the rods of the groups so that the most rods are placed in the region of greatest stress is a mere matter of engineering judgment. He rejected claims 10 and 13 on the ground that the patents to Luten, Hennebique, and Stragiotti describe arrangements in which certain of the bars are upturned intermediate their ends to take care of the negative strains over the supports and that there would be no invention in thus arranging the bars of the British patent, if deemed expedient.

The Examiners-in-Chief, after noting the distinction which was drawn in applicant's brief between his structure, which he referred to as a "flat plate type" of floor, in which a flat slab simply rests on columns, and the structure of the references, which he referred to as of the "mushroom" and "beam and panel" floor type, respectively, said:

The applicant can hardly maintain that a floor construction comprising a flat slab simply resting upon columns is per se a new thing, nor do we think it is maintainable that engineers are not entirely familiar with the distribution

of stresses and strains in such an arrangement.

* The parallel group

ing in sets of the reinforcing rods and their distribution otherwise has already been proposed to the art by Turner and Cowles. At best, all applicant has done is to change the direction of certain of these old groups of reinforcing wire, so that they pass through concrete structure to meet strains which the skilled builder would surely know had to be met.

Applicant argues that the distribution of the stresses and strains of a floor of the type shown herein was not known at the time this application was filed; that the action of the bars in the lower portion of the beam, such as shown in the patents to Luten and Hennebique, is quite different from the action of the bars in the lower portion of a floor of the flat-plate type and would not suggest an arrangement of the reinforcing-bars such as specified in claims 10 and 13, and it was only by an elaborate series of experiments with a small model of a floor-slab that he ascertained that his proposed arrangement would result in the desired distribution of stresses and strains. It is also stated that by his arrangement of rods applicant is enabled to dispense with column-head frames and column-reinforcement.

In the British patent the reinforcing-rods extend in groups from column to column, the floor being supported on the columns. In his United States Patent No. 1,003,384, the application for which was filed June 11, 1907, and which shows the same arrangement as his British patent, Turner states that the object of his arrangement of reinforcement is to provide

* a flat plate floor that would act as nearly as possible like a continuous flat plate of homogeneous material supported directly by the columns.

If it was found that the stresses in such a structure were greatest over the centers of the columns, there would be no invention in arranging the rods of each group so that they would be spaced farther apart at the edges than in the middle of the group, and this is all that is covered by claims 1 and 4.

Nor is it seen that there is any such difference of action in the type of construction shown in the patents to Luten and Hennebique and that shown in the British patent that it would not be obvious that the rods of the latter could be arranged in the manner shown in the former for the purpose of attaining the advantage set out therein for such an arrangement. Applicant's laboratory experiments do not show that this was not obvious, but merely that the theory that the desired result could be obtained thereby was correct.

The statement that by the arrangement claimed applicant has dispensed with column-head frames and column-reinforcement is not seen to be correct. The application shows a vertical reinforcement at each column and reinforcing-bars which are arranged radially with respect thereto and which the specification states are for the

purpose of properly anchoring the floor-slabs to the columns and to provide a sufficient resistance to shear-stresses adjacent to the columns. It is noted that the Examiner allowed claims which included this construction.

The decision of the Examiners-in-Chief is affirmed.

CAMPBELL V. DYSON v. DUNHAM.

Decided December 27, 1916.

242 O. G., 253.

1. INTERFERENCE SECOND DECLARATION.

Where an interference declared between parties K. and D. was dissolved on the ground that K. had no right to make a claim suggested to him by the Office, and C., also assignor to the assignee of K., had before the dissolution made some of the claims of the issue, Held that the right of C. to make the claim was not res adjudicata by reason of the dissolution of the first interference.

2. SAME PURPOSE-NOT TO DETERMINE PATENTABILITY.

An interference is not a proceeding to determine whether the parties have a right to a patent. It starts with the assumption that both parties have a clear right to a patent except for the simultaneous claim of the other.

3. SAME DISSOLUTION-EFFECT OF.

The dissolution of an interference on the ground that one of the parties has no right to make any of the claims of the issue is merely a ruling that it was a mistake to declare the interference as to that party. 4. SAME-SAME-SAME.

A previous interference which terminated without final hearing and decided nothing more than that one of the parties thereto did not have the invention in issue does not work estoppel against a common assignee to contest priority with the successful party on the basis of another application which prior to the termination of the prior interference contained claims corresponding to the issue thereof and a request to be included therein. APPEAL from Examiners-in-Chief.

TELEPHONE SYSTEM.

Messrs. Bulkley & Swenarton and Mr. E. D. Fales for Campbell. Mr. Curtis B. Camp for Dyson.

Mr. D. C. Tanner and Mr. John G. Roberts for Dunham.

CLAY, Assistant Commissioner:

Campbell, the junior party in a three-party interference, appeals from the affirmance by the Board of Examiners-in-Chief of a decision by the Examiner of Interferences that he "is not the first inventor of the subject-matter in issue" on the ground that Camp