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treatment, together with the modified article thereby obtained, the application was
held to be duplex, and the varied process and article required to be expunged. Separate independent inventions which are not necessarily connected with the appa
ratus described, or article naturally produced thereby, but which may be used with other apparatus and in connection with the article produced in other ways, cannot
be included in the same application with them. A. V. BRIESEN for applicant.
DOOLITTLE, Acting Commissioner :
This is an appeal from the decision of the primary examiner, requiring a division of the application. The subject of the application consists
In an apparatus and processes for purifying mineral wool during or after its manufacture, and for preparing it for use in the arts.
The apparatus shown and described consists, first, of a trough or conduit, by which a stream of slag is conducted into an apartment where it falls over a pipe, through which a jet of steam is blown against the stream of scoia, and by which a vitrified fine fiber is separated from the heavier shot or sand like constituents of the inolten mass, and wbich ascends toward the upper part of the chamber in the form of spray, while the heavier globular matter falls to the floor.
In this case the mineral current is thrown up in an inclined direction toward the opposite side of the chamber by reason of the angle at which the mouth of the steam-pipe is placed, and upon reaching the opposite side of the chamber the spray is again met by another current of air, steam, gas, or liquid, which blows the fiber through an opening into an upper chamber, where the wool settles into separate receptacles prepared for it upon the floor of the latter compartment.
The receptacles in this case consist of pans or vats, which may be hung on shelves or placed upon the floor of the upper compartments, and pans are constructed of the same length and width as it is desired that the sheets of felting made from the wool should possess. When a sufficient quantity of wool has settled into the pans, it is pressed, by means of a lid, into a wadded sheet; or the bottom of the pan is made loose, so that by reversing the pan the bottom may serve as a lid. After a sheet is thus compressed the process is repeated.
Applicant continues his description by adding, that in order to give more compactness to, or to strengthen the sheets of wool thus made, he sizes, paints, powders, or mixes the wool while in the pans, or after the sheets bave been taken therefrom, with a simple solution of glue, if the sheets are to be made stiff; but if they are to remain pliable, a mixture of glue and glyceride, or equivalent substance, is used.
He also proposes to use bituminous, resinous, or guinny substances in a powdered or liquid state, according to the purpose for which the felting is required, which are placed in the same compartment with the pans, melted, transformed into vapors, and condensed upon or mingled with the mineral wool, &c.
Applicant claims not only the mechanical process described, but the
specific apparatus, the article produced, and, in addition to these, the process of treating mineral wool with a bituminous, resinous, or gummy substance, and subjectivg the same to heat; also, the new article of manufacture produced by the addition of such substances. The question of novelty as to these various matters is not involved.
I think applicant may describe and claim the mechanical process of producing the mineral wool, also the instrumentalities themselves, of which the pan or rat is one, and also the article which is the natural and necessary product of the machine. It was clearly intimated in the case of Junker & Wolf (11 OFFICIAL GAZETTE 110), that where the machine is specifically adapted for producing a particular material, the material might be claimed as well as the machine. In that case it was found that the machine was capable of operating on many other products than the one attempted to be claimed.
But the claims for the article treated chemically with bituminous, resinous, or gummy substances, and also the claims for the chemical process indicated, should be stricken out. They cover separate, independent in rentions, which are not necessarily connected with the apparatus described or article naturally produced thereby, but which may be ased with other apparatus and in connection with the article produced in other ways.
The matter to be eliminated is embraced in the sixth and eighth claims.
It may also be added that the fifth claim, which is for “depositing said wool directly and without previous handling in the receptacle in which it is to be compressed,” is bad in form, being merely for a function or result..
To the above extent the decision of the Examiner is affirmed.
SWIFT vs. PETERS.
0. G. vol. xi, p. 1110.
APPEAL FROM THE DECISION OF THE BOARD OF EXAMINERS-IN-CHIEF IN THE MATTER OF THE INTERFERENCE
BETWEEN THE APPLICATION OF JOAN N. SWIFT FOR THE REGISTRATION OF A TRADE-MARK FOR FERTILIZ ERS AND A TRADE-MARK REGISTERED TO WINFIELD PETERS FEBRUARY 29, 1876.-Decided May 8, 1877.
A trade-mark interference, unlike those for patentable matters, has nothing to do with
the question as to who was the first to conceive or suggest the mark, but who was
the first to put it into actual practice. A contestant wl acted in the capacity of an agent, and as such received and shipped
the goods to which the trade mark was attached, cannot be said to have put the
mark into actual practice. The title of the registrant of a trade-mark is for the courts, not for the office to deter
mine. G. H. & W. T. HOWARD for Swift. ALEXANDER & Mason for Peters.
DOOLITTLE, Acting Commissioner
This is an interference between a registrant and an applicant for reg. istration of the following trade-mark: “The John C. Ragsdale Ammoniated Dissolved Bone."
The name, "John C. Ragsdale,” is that of a gentleman who lived in Georgia in 1874, was the president of an agricultural society there, and whose name was appropriated, by his consent, as a trademark, for the purpose of giving to the article local popularity. It does not appear that Mr. Ragsdale bad anything to do with the use of the trade-mark or with the manufacture of the article.
The applicant, residing at the same place, had been deputized by the same society to enter into negotiations of some sort with manufacturers of fertilizers for the purpose of introducing an article in the commu. nity direct from the manufacturers. In accordance with this plan, he had an interview with Mr. Snowden, of the firm of Spowden & Peters, from Baltimore, dealers in fertilizing materials, and proposed that they should put up an article under the title already described.
This firm agreed to the proposal, and on January 26, 1875, submitted an argument in writing to Swift, the applicant, stating the terms upon which they would ship this and their other brands of fertilizers, and also the commission tbat would be paid him, &c. Swift accepted the agency on the terms proposed, and the firm in question then commenced the shipping of the fertilizer, using this brand in connection with their own name. February 29, 1876, this trade-mark was registered by Peters, the firm of Snowden & Peters having in the mean time dissolved partnership.
The applicant bases his whole case upon the fact that he was the first to suggest the use of the trade mark in question, and that it was adopted by Suowden & Peters, and placed by them upon the goods sent to him through his instrumentality.
Unlike patentable matters, the question of priority in a trade-mark interference has nothing to do with the question as to who was first to conceive the idea or first to describe and propose its use. As was held by the United States Supreme Court in the case of The Canal Company vs. Clark, 13 Wall., 311, “words or devices may be adopted as trademarks which are not original inventions of him who adopts them, and courts of equity will protect bim against any fraudulent appropriation or imitation of them by others. Property in a trade-mark, or rather in the use of a trade-mark or name, has very little analogy to that which exists in copyrights or in patents for inventions.
The office of a trade-mark is to point out distinctively the origin or ownership of the article to which it is affixed; or, in other words, to give notice who was the producer. Tbis may, in many cases, be done by a name, mark, or a device well known, but not previously applied to the same article."
From this it will be seen that it is of no consequence whatever who was first to suggest and urge the adoption of the trade-mark, but the
point is who was first to actually adopt and use the same, for the pur. pose of indicating the ownership or proprietorship of the articles to which the mark is applied.
Although Swift alleges in bis application that he had been using this brand for about two years, yet be used it merely as an agent uses the trade-mark of the firm for whom he sells goods. He did not use it nor pretend to use it as his own mark upon goods or apon packages of goods prepared by him. The mark at no time indicated tbat he was either the manufacturer of the article itself or one of the firm who sold the article throughout the country. These are the facts that have been found by both the lower tribunals.
The point is made, however, that if the mark does not belong to Swift, neither is it the property of Peters, as the trademark was adopted and used by the firm of Snowden & Peters, which firm was dissolved in 1876, and the right'to use it thereafter did not remain in Peters.
Whatever may be the rights of Peters and Suowden as to each other in this matter, it is perfectly clear that Swift has not even overcome the prima facie case made by Peters. Peters is a registrant, and it is of no avail whatever for this Office to enter into an inquiry as to bis right of ownership to the trade mark in dispute, formerly owned by the firm of Snowden & Peters. The judgment of this Office as to Peters's right of property in the mark, would not affect Snowden's claim in tbe least. That is a question for the courts, and over which the Office has no jurisdiction. It would be unnecessary waste of time, therefore, for the Office to inquire into the respective rights of those parties. It is sufficient for the purposes of this contest to show that Swift, the applicant, has no right whatever, as against Peters. They are the only parties to this contest, and the judgment must be confined to them alone.
The decision of the Board of Examiners-in-Chief, awarding priority to Peters in the adoption of this trade-mark, is affirmed on the ground that Swift, bis opponent, had never adopted or owned it at all in the sense contemplated by the trade mark law.
IN THE MATTER OF THE APPLICATION OF JOHN T. MYGATT FOR LETTERS PATENT FOR IMPROVEMENT IN
THE MANUFACTURE OF PAPER BOXES, FILED NOVEMBER 23, 1867.-Decided May 24, 1877.
Section 35 of the act of 1870, which declared all applications to be abandoned that had
been rejected or withdrawn prior to the date of its passage, and that had neither been renewed nor a new application fied within six months thereafter, construed to be modified by section 111 of the same act, so as to not include applications pending
at the date of its passage. The word "pending" is used in the section in the same sense as it is applied to a suit
that is, it is pending so long as it remains undecided or in suspense.
Any case in which judgment has been rendered by a competent tribunal, the parties
notified, and no appeal taken or noted, can hardly be regarded as pending. The Office rules in force at the time of the passage of the act of 1870 construed to mean
that a case was pending only until the decision of an appeal after a second rejection thereon, or until after the party bad withdrawn the case from the further consider
ation of the Office. An application for letters patent having been acted upon for the last time January 27,
1869, by the Board of Examiners-in-Chief, who affirmed a previous rejection of the Primary Examiner, a motion to reopen the case and dispose of it on its own merits was denied, it havivg been abandoned under the law of 1870, and not pending at the
date of the passage of said act. DOOLITTLE, Acting Commissioner:
The last action taken by the Office on the above-entitled application was January 27, 1869. This consisted of a decision by the Board of Examiners in Chief affirming the rejection of the Primary Examiner. A motion is now made to reopen the case on the ground that no time having been fixed by law at that date for an appeal to the Commissioner, the parties may exercise that right at any time.
Applicant also insists that his application falls within the provisions of section 4894 Revised Statutes.
He submits affidavits to show that by reason of poverty he could not sooner take his appeal to the Commissioner.
Under the practice of the Office of late this application would be held to be abandoned by virtue of that proviso in section 35 of the act of July 8, 1870, which enacted that, when an application for a patent bad been rejected or withdrawn prior to the passage of that act, the applicant should have six months from the date of such passage to 'renew his application, or to file a new one; and, if he omitted to do either, his application should be held to have been abandoned.
The only restriction upon this section seems to have been created by scction 111 of the same act, which provides
That all applications for patents pending at the time of the passage of this act, in cases where the duty has been paid, shall be proceeded with and acted on in the same manner as though filed after the passage thereof.
The question arises as to the proper construction to be placed on the word “pending” in the latter-named section. It was once held to include all cases in which the application fee had been paid prior to the passage of the law, and which at that time either stood upon the docket awaiting action on the part of the Office, or were subject to be called up for further consideration by action on the part of the applicant, and this, too, until the case bad been carried up to the highest tribunal on appeal within or without the Office. But the better opinion seems to be that the word “pending” here refers to an application in the same sense that the word is applied to a suit—that is, it is pending so long as it remains undecided or in suspense. Any case, therefore, in which judg. ment bas been rendered by a competent tribunal, the parties notified, and no appeal has been taken or noted, can hardly be regarded as pending