DECISIONS OF THE STATE COURTS IN PATENT CASES FOR THE YEAR 1917. [Supreme Court of the State of New York.] FISHER V. STAR Co. WHEELER SYNDICATE, INC., v. SAME. GREENBAUM, J.: Decided January 25, 1917. 236 O. G., 285. The only question reserved by the court for determination was whether the defendant is to be enjoined from hereafter publishing cartoons drawn in imitation of Mr. Fisher's creations, "Mutt and Jeff." It seems to me that, viewing this question from a standpoint of unfair competition, there should be but one answer thereto, and that is that the publication of such cartoons would be calculated to deceive the public into believing that they were the genuine productions of Mr. Fisher. The cases that recognize these principles as applied to ordinary merchandise are fully stated in such cases as Hanover Milling Co. v. Metcalf, (C. D., 1916, 265; 244 O. G., 1407; 240 U. S., 403,) E. P. Dutton & Co. v. Cupples, (117 App. Div., 172,) and Yale & Towne Mfg. Co. v. Adler, (154 Fed. Rep., 37.) I can find no difference in principle between that class of cases and the one under review excepting that it is here sought to protect an individual possessed of special skill in the production of cartoons of his own creation. My attention has been called to the opinion written by the Examiner of Interferences upon an application of the defendant for cancelation of the trade-mark "Mutt and Jeff," registered by the plaintiff Fisher as a trade-mark for a series of cartoons. The Examiner refers to recent works on trade-marks in which the distinction is observed between a personal and impersonal trade-mark. Special reference is made to Paul on Trade-Marks and the English work of Sebastian, (4th ed., p. 100,) concerning which the Examiner states that a personal trade-mark is discussed at some length, with a citation of authorities. and is referred to as a mark which identifies the article to which it is attached with the personal skill or supervision of an individual. I can see no reason on principle why such a trade-mark should not be recognized as the property of Fisher in this case. In passing upon the voluminous findings submitted by the defendant I desire to observe that because reference is made to certain copyrights in the plaintiff's findings there is no implication that this court is disposing of this case upon the theory that a copyright is involved. The facts with reference to the copyright are merely incidental in the determination of the ultimate questions presented. Findings passed upon. Decisions and judgments signed. DECISIONS OF THE UNITED STATES COURTS IN PATENT CASES FOR THE YEAR 1917. [Supreme Court of the District of Columbia.] MERRILL v. EWING, COMMISSIONER OF PATENTS. Decided November 15, 1916. 234 O. G., 1045. SUIT TO OBTAIN PATENT UNDER SECTION 4915, REVISED STATUTES-CLAIMS FOUND ALLOWABLE IN PART IN LIGHT OF EVIDENCE SUBMITTED. Evidence considered and found to justify the allowance of claims 6, 7, and 8 and a claim substantially like these but omitting the clause relating to the cleaning out of the residue, and to support the rejection of claims 1 to 5. Mr. Archibald Cox and Mr. Wm. G. Henderson for the plaintiff. Mr. William R. Ballard for the defendant. McCoy, J.: The purpose of this suit is to obtain relief under section 4915 of the Revised Statutes, the plaintiff's application for a patent having been rejected by the Patent Office and the decision of the Commissioner of Patents having been affirmed by the Court of Appeals of the District of Columbia. The bill prays a judgment that the plaintiff is entitled to a patent for the invention which he claims and that the Commissioner of Patents be authorized and directed to grant him such patent. The bill also asks for certain amendments of plaintiff's specifications or of the claims, or both, before the grant of the patent asked for. Plaintiff's invention is of a process for treating semisolid materials in the containers of filter-presses and removing the same therefrom. There are eight claims, which, as the court of appeals says, are sufficiently illustrated by two as follows: 1. The hereinbefore described method of treating in and removing solid or semi-solid material from the containers of pressure filters consisting in depositing a sufficient amount of said material in layers of suitable thickness upon the filter-cloths which form the closure of the containers, so that a space is left between the layers, then subjecting the layers to the pressure of a liquid, vapor or gas acting from behind the filter-cloths whereby the same are caused to fall to the bottom of the container and then forcing said material out of the container by the impingement of a stream of liquid, vapor or gas under pressure acting from below upwardly upon the contents of said containers. 6. The hereinbefore described method of treating in and removing solid or semi-solid material from the containers of pressure filters consisting of depositing the same in thin layers upon the filter cloths which form the closure of the filters so that a space is left between the layers, then subjecting the layers to any desired metallurgical treatment, subjecting the material during the deposition and treatment to continuous pressure upon the layers, and then opening the gates of the containers and finally, subjecting the layers to the pressure of liquid, vapor or gas acting from behind the filter cloths whereby the same are discharged from the pressure filter through said bottom outlet gates of the containers. The court of appeals further states that plaintiff's process is for the purpose of extracting gold from ore-slimes by what is known as the cyanid process. A filter-press of the kind in which the process claimed by the plaintiff is carried on is described as being a set of frames or containers shaped like a box without ends which are placed together so as to form sections of a long, hollow structure. Alternating with the containers and inserted between them are filter-plates, that is, plates holding apart two pieces of filter-cloth so that liquid passing through the filter-cloth may collect and pass out at the bottom of the plates. The containers and plates are pressed together so as to make tight joints between them, and the whole thus held together is called a filter-press. Before the plaintiff invented the process here involved, the slimes were treated in the kind of filter-press described by admitting them into each container under pressure. The free-gold-bearing liquid would pass through the filter-cloths and be carried off through the passages in the bottom of the filter-plates, the slimes remaining in the containers with some of the gold-bearing solution held in them. To displace or remove this solution washing fluid was admitted into the filter-plate at one end of the container and put through the cake of slime displacing the gold-bearing solution held in the cake and forcing it out through the filter-plate at the other end of the container. The essential feature of the process now sought to be patented is the depositing of thin layers of slimes on the filter-cloths within the containers; holding these layers in that position by main taining a continuous pressure against them and displacing the goldbearing solution by forcing washing fluid through these layers from the center of the container, thereby forcing the solution into the filterplates at the two ends of the container. It is claimed by the plaintiff, although not so stated in his application, that in carrying on the process of extracting gold according to the earlier method, it was necessary to completely fill a container with a solid cake of the slimes because otherwise it would be impossible to extract the gold-bearing solution held in the slimes after the free-gold-bearing solution had been filtered off, for the reason that in order to force washing fluid through a cake of slimes the cake must entirely fill the container. If this were not done the washing fluid would pass through the space not so filled, that being the line of least resistance. Again, if there were simply a layer of slimes on the filter-cloth the washing material coming in through the filter-plate would knock it down and not pass through it. The plaintiff attempted to prove in the Patent Office that it was the invariable practice to fill containers of filter-presses completely with the slimes before his present invention, but he was not permitted to make use of certain affidavits offered for that purpose. Those affidavits having been rejected by the Patent Office were not considered by the court of appeals. The officials in the Office held that it was not the universal practice to completely fill containers as above stated. The Examiner said that the drawings of the present case and in a prior patent to the plaintiff were substantially identical; that the process as claimed differs from that of the patent only in two particulars, one of which he said— is a limitation which is only the natural and logical, and even the necessary and inevitable, operation of the process. such limitation being the claim that the process of filtering is to be carried on only until the deposited layers of sediment are of a suitable thickness and so as to leave a space between the layers. The Examiner said further: As to this it need only be said that anyone of ordinary intelligence in operating the filter to carry out the process would exercise sufficient judgment to clean out the containers when the layers of sediment were of "suitable thickness," (see line 71-75, p. 1 of Thompson) and would not be such a blockhead as to attempt to continue the filtering operation until there was no space left between the layers, or until the machine would break down from excess pressure. Certain affidavits are now before the court on a stipulation that they are to have the force and effect of testimony. The statements in these affidavits which are in no wise controverted by other evidence 16644-18-8 |