text:
    GILBERT CO. v. JOHN C. GILBERT CHOCOLATE CO.
    Patent Appeal No. 2698.
    Court of Customs and Patent Appeals.
    April 27, 1931.
    Wm. Steell Jackson, of Philadelphia, Pa., for appellant.
    Chappell & Earl, of Kalamazoo, Mich. (Fred L. Chappell and Otis A. Earl, both of Kalamazoo, Mich., of counsel), for appellee.
    Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   BLAND, Associate Judge.

Appellant herein has appealed from a decision of the Commissioner of Patents, which reversed the decision of the examiner of trade-mark interferences, which latter decision dismissed the opposition proceeding which appellee had instituted.

In the decision of the commissioner the facts in the-case and the law applicable thereto are so clearly and, in our view, so aptly stated, that we feel it unnecessary to either set out in detail the facts or to discuss, at any great length, the law.

The opposer, appellee, of the state of Michigan, has, since 1893, engaged in the manufacture and sale of confectionery, generally designated as chocolates, its products being widely sold throughout the United States under the trade-mark “Gilberts,” usually in script. Said mark was registered on March 1, 1916, under the ten-year exclusive use provision of the Trade-Mark Act.

The Gilbert Company, appellant, applicant, is a firm composed of J. H. McGill and Gilbert B. Mustin, and it is claimed that the origin of the word “Gilberts,” which appellant seeks to register, is formed by a combination of part of the surname of J. H. McGill and the Christian name of Gilbert B. Mustin. The Gilbert Company shows use, since May, 1926, of the trade-mark “Gilberts” in script, almost identical with that of appellee, upon medicated chewing gum. The mark of appellant, which it seeks to register, contains the name “Gilberts,” as above indicated, as its most pronounced feature, accompanied by . the words “Soda Mint Gum” and a small triangle, all placed in a rectangular black background. The words “Soda Mint Gum” are disclaimed.

The examiner of interferences dismissed the opposition on the ground that candy and chewing gum were not goods of the same descriptive properties. The commissioner reversed this finding of the examiner of interferences and held that the goods were of the same descriptive properties, and that the marks were almost identical.

Appellant insists that its goods are in the nature of a medical preparation and that there would be no likelihood of confusion between a medicated chewing gum and chocolates.

The record establishes clearly that the chocolates of appellee, of more than eighteen different varieties and of very high grade, are sold in drug stores, candy stores, cigar stores, hotels, department stores, clubs, and various other places; that the said “Gilberts” chocolates are well and favorably known in such places of business; that chewing gum is displayed and sold in the same places of business as chocolates; and that the goods are usually displayed side by side.

We think chewing gum such as appellant manufactures and sells is merchandise of the same descriptive properties as chocolate candies. California Packing Corporation v. Tillman & Bendel, 40 F.(2d) 108, 17 C. C. P. A. 1048; California Packing Corporation v. Price-Booker Mfg. Co., 52 App. D. C. 259, 285 F. 993; I. E. Palmer Co. v. Nashua Mfg. Co., 34 F.(2d) 1002, 17 C. C. P. A. 583; Sun-Maid Raisin Growers of California v. American Grocer Co., 40 F. (2d) 116, 17 C. C. P. A. 1034; Yale Electric Corp. v. Robertson (C. C. A.) 26 F. (2d) 972; Aunt Jemima Mills Co. v. Rigney & Co. (C. C. A.) 247 F. 407, L. R. A. 1918C, 1039; Williamson Candy Co. v. Ucanco Candy Co. (D. C.) 3 F.(2d) 156; Heekin Co. v. Lawrenceburg Roller Mills Co., 40 F.(2d) 119; 17 C. C. P. A. 1093; Cluett, Peabody & Co. v. Hartogensis, 41 F.(2d) 94, 17 C. C. P. A. 1166; Skookum Packers’ Ass’n v. Pacific Northwestern Canning Co., 45 F. (2d) 912, 18 C. C. P. A.-.

Appellee’s trade-mark “Gilberts” is taken from the name of the owner or founder of the company. Since it is in script and is registered under the ten-year exclusive use clause of the act, the right to the ownership and use of such a trade-mark is not seriously questioned here. See Thaddeus Davids Co. v. Davids and Davids, 233 U. S. 461, 34 S. Ct. 648, 58 L. Ed. 1046; J. B. Williams Co. v. Williams, 48 F.(2d) 398, 18 C. C. P. A. -. Appellant’s claim of right to use the word “Gilberts” does not involve the question of the right of a party to use his own name in the sale of his goods. It is not claimed that the word “Gilberts” of appellant is the name of the manufacturer or seller of the goods, except as above indicated.

We think, since the goods are of the same descriptive properties, and the trademarks are 'practically identical, that confusion would result within the meaning of section 5 of the Trade-Mark Act of February 20,1905 (15 USCA § 85) and that registration of appellant’s mark should not be granted, and that the Commissioner of Patents properly denied registration, and his decision is affirmed.

Affirmed.


source: Caselaw Access Project

author: HATFIELD, Associate Judge.

license: Public Domain

text:
    In re ROBINSON.
    Patent Appeal No. 2699.
    Court of Customs and Patent Appeals.
    April 27, 1931.
    Wm. Steell Jackson, of Philadelphia, Pa., for appellant.
    T. A. Hostetler, of Washington, D. C. (Howard S. Miller, of Washington, D. C., of counsel), for Commissioner of Patents.
    Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   HATFIELD, Associate Judge.

This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming the decision of the Primary Examiner denying claims 3, 4, 5, 7, 8, and 10 in appellant’s application for a patent for an alleged invention relating to moveable supports for connector heads of train pipe couplings.

Claims 3 and 8 are illustrative. They read:

“3. In an automatic train pipe connector, a head, a carrier therefor having spaced arms rigid with respect to each other, a V- and-wedge joint between each arm and the head, a tie-bolt through each joint, a spring surrounding each tie-bolt and secured thereby to the head and pressing the head and carrier together at the joint, a bracket, and longitudinally resilient supporting connection between the carrier and bracket.”
“8. In an automatic connector for trains, the combination of a head, a bracket, a spring and connections between the head and bracket through the spring including a clamp, having a thread of the same pitch and diameter as the spring and side walls tapered in cross-section and means acting transversely of the spring for causing the clamp to grip the spring upon the sides.” ■

The references are: Genin, 862,068, July 30, 1907; Westinghouse, 1,120,005, December 8, 1914; Robinson, 1,507,857, September 9, 1924; Robinson, 1,660,766, February 28, 1928; Letord (British), 130,393, 1919.

The involved application is a division of an application filed December 17, 1921, No. 522,983, whieh matured into patent No. 1,507,857; in which appellant disclosed two species of his invention and was allowed specific claims for one, and other claims sufficiently broad to cover both. In the involved application, appellant seeks an additional patent for the species not specifically claimed in his patent.

Claims 3, 4, 5, and 10 were rejected on the patent to Genin and appellant’s earlier patent No. 1,507,857. With reference to these claims, the Board of Appeals said:

“It is sufficient to state that this application is a division of the application from whieh appellant’s patent No. 1,507,857 eventuated and in that patent the V-shaped clamp shown at 13 in Fig. 1 of this application is claimed broadly in a general combination of this nature. In that patent, also, are specific claims covering a structure employing the two spring supports 14 and 15 of the patent instead of the single spring support 7 disclosed in this case. The examiner has taken the position that it does not involve any invention to employ the specific clamp of appellant’s prior patent with the structure of Genin which has a single spring support.
“In appellant’s brief, page 2, the next to the last paragraph, we find the following:
“ ‘Applicant regards as fundamental that the Office cannot cite against a copending application that species of a patent whieh was not claimed in it but which was divided out for the application appealed.’
“Appellant’s position is clearly not well taken. It is the well settled practice that two patents should not be granted for different embodiments of the same invention unless there is a patentable difference between them. We find nothing in appellant’s argument pointing out why the use of the clamp of Robinson’s' earlier patent in the structure of Genin would involve invention. The brief merely contends that the advantages of both structures result from the combination. It is the well established practice that the mere addition of elements does not produce patentable distinction when no unexpected result occurs or when no difficulty is encountered whieh requires the exercise of more than mechanical skill. In our opinion if one of the patents relied upon by the examiner had not been appellant’s patent, there would have been no reasonable question but that the combination was' justified in making the rejection.”

The. Board of Appeals committed no error in its ruling. An inventor may not ex'tend his monopoly by securing the allowance of claims not differing in substance from an issued patent. In re Isherwood, 46 App. D. C. 507; In re Swan, 46 F.(2d) 572, 18 C. C. P. A. -; In re Peiler, 48 F.(2d) 405, 18 C. C. P. A.-.

Claims 7 and 8 were rejected on the patent to Westinghouse in view of the patent to Letord. In this connection,.the Board said:

“We do not regard the substitution of the usual V-shaped thread structure for the curved shape of Westinghouse as involving a patentable distinction and if additional suggestion is necessary, we regard the structure of Letord as sufficient even if the spring is compressed when it engages this structure.”

We are of opinion that the tribunals of the Patent Office were right in holding that, the involved claims define nothing of a patentable character over the references of record.

The decision of the Board of Appeals is affirmed.

Affirmed.


author: LENROOT, Associate Judge.

text:
    In re GREEN et al.
    Patent Appeal No. 2683.
    Court of Customs and Patent Appeals.
    April 22, 1931.
    Owen & Owen, of Toledo, Ohio (Malcolm W. Fraser, of Toledo, Ohio, of counsel), for appellants.
    T. A. Hostetler, of Washington, D. C., for the Commissioner of Patents.
    Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   LENROOT, Associate Judge.

This is an appeal from a decision of the Board of Appeals of the United States Patent Office affirming the rejection by the examiner of claims 17 and 18 of appellants’ application.

Said claims read as follows:

“17. A rust-proofing compound, comprising a granular or powdery substance containing high acid ortho-phosphates of iron.
“18. A rust-proofing compound, comprising a granular or powdery substance containing high, acid phosphates of iron and manganese.”

The references are:

Emig, 1,263,395, April 23, 1918.

Gravell, 1,428,084, September 5, 1912.

The application relates to a method of making a rust-proofing composition and includes both process and product claims. Certain of the process claims were allowed, but the product claims, being those above quoted, were rejected. The specification discloses that the composition is used by dissolving it in water. The solution is then boiled and articles having iron surfaces are immersed in it while the solution is boiling.

If claim 17 is patentable, it is because it constitutes invention to produce high acid ortho-phosphates of iron in a granular or powdery form.

This claim was rejected upon the Emig reference. In appellants’ specification it is stated: “ * * * When strong phosphoric acid contacts iron, high acids salts are formed. Weaker acid, or the acid salts, in contact with iron form the lower acid and insoluble salts.”

The Solicitor for the Patent Office in his brief contends that: “Claim 17 enumerates only one element — a well-known chemical product resulting from treating iron- with phosphoric acid — in a granular or powdery form. It is submitted to be uninventive to powder any substance.”

This contention would appear to be well founded. Appellants, in their brief, make the following statement:

“Ordinary commercial phosphoric acid has the formula HsPOt. It combines readily with iron in at least three Ways indicated in the following equations:
“Fe+2H3P0é=Fe(H2P0í)2+2H. The product of this reaction is commonly known as dihydrogen ferrous phosphate.
“2Fe+2H?.PO <t=2FeHPO4+4H. The product of this reaction is monohydrogen ferrous phosphate.
“3Fe+2H sP 0'4=Fe3 (POi)2+6H. The product of this reaction is normal ferrous phosphate.
“Each of these phosphates is normally crystalline. However, the dihydrogen phosphate is readily soluble in water, the mono-hydrogen phosphate is practically insoluble, its solubility being in terms of a small fraction of 1%; and the normal ferrous phosphate is even less soluble than the monohydrogen phosphate.
“In applicant’s process iron and acid are mixed together in the proper proportion to form dihydrogen ferrous phosphate. This is the phosphate first formed when phosphoric acid attacks iron, at least when the phosphoric acid is present in sufficient quantity. * * * ” (Italics ours.)

The second formula above quoted describes appellants’ product. ■

Appellants, however, insist that the said ground of rejection thus urged by the Solicitor for the Patent Office cannot be considered upon this appeal because it was not considered or acted upon by the Patent Office tribunals.

It is unnecessary for us to pass upon this point, because we are clear that the Emig reference elearly discloses a product of low acid ortho-phosphates of iron, and it is obvious from that disclosure that high acid ortho-phosphates of iron would be produced by reducing the percentage of iron filings employed in the combination with phosphoric acid. The Emig patent states: “My invention relates to a coating material for iron and the like which is strongly adherent, durable and weatherproof and will protect the surface of iron, etc., to which it is applied for a very extended period from the action of the air and other oxidizing influences. In the following specification I have described in detail the preferred ingredients and proportions thereof and also the preferred manner of compounding the ingredients so as to seeure the most satisfactory composition for the purpose. It is to be understood, however, that the specific disclosure is for the purpose of exemplification and that my invention in its broader aspect is not limited either to the particular ingredients, proportions of method of compounding specifically described but equivalent materials may be used the proportions and the method of compounding varied without departing from the scope of the invention as set forth in the following claims.”

We agree with the Board of Appeals that there would be no invention in omitting the added ingredients disclosed by Emig and using the iron filings and phosphoric acid to produce the product described in claim 17. There is nothing in the record from which we could conclude that it'constituted invention to reduce high acid ortho-phosphates of iron to a granular or powdery form.

Claim 18 was rejected upon the Emig reference, and an admission by appellants that it is old to use manganese oxide in a rust-proofing bath. The Solicitor for the Patent Office contends that, “Where an admittedly old bath includes certain ingredients, including liquid or water, it is submitted to be ordinarily obvious that the solid ingredients may be added one at a time, or be all mixed together before being added as a unit to the liquid.” This 'is clearly a correct statement, and we can find no invention in making manganese a part, of the composition instead of using it in conjunction with high acid phosphates of iron, but not as a part of the composition.

The decision of the Board of Appeals is affirmed. -

Affirmed. ■


author: GARItETT, Associate Judge.

text:
    In re FRANK.
    Patent No. 2700.
    Court of Customs and Patent Appeals.
    April 27, 1931.
    Byrnes, Stebbins, Parmelee & Blenko, of Pittsburgh, Pa. (Walter J. Blenko, of Pittsburgh, Pa., of counsel), for appellant.
    T. A. Hostetler, of Washington, D. C. (Howard S. Miller, of Washington, D. C., of counsel), for Commissioner of Patents.
    Before GRAHAM, Presiding Judge, and BLAND, HATEIELD, GARRETT, and LENROOT, Associate Judges.
   GARItETT, Associate Judge.

Erank has appealed to this court from a decision of the Board of Appeals of the United States Patent Office affirming the decision of the Examiner denying five claims, being all the claims in the case, for patent for alleged improvement in ground rod clamps, whereby he compresses together a ground rod and a ground wire for conducting electricity to the earth in electrical systems such as telephone, power, and electric railway service.

Claims 3 and 4 appear to be typical:

“3. The combination with a conductor, and a ‘ ground rod of materially larger diameter than the conductor, of a clamp consisting of a continuous sleeve provided with an opening of elongate uniform cross section having a minor axis slightly larger than the diameter of said rod which is arranged in one end of said opening, the interior wall of said sleeve being provided with a groove at the other end of said opening receiving said conductor in parallel with said rod, and a side of said conductor projecting into said opening in eontaet with said rod, and a screw clamp extending through said sleeve and bearing upon said rod at said first-named end of said clamp opening and distorting said conductor in conformity with the contour of said groove.
“4. A ground rod clamp comprising a continuous unitary sleeve having an opening therethrough of substantially constant cross section and adapted to receive a ground rod and a ground wire, said opening being elongated, the sleeve having a boss formed on one side -thereof substantially midway of its length and on the long diameter of said elongated opening, and having reinforcing flanges extending from the boss around the top and bottom edges of the sleeve, the boss having a threaded opening therethrough, and a set screw in the opening in the boss whereby a ground rod and a ground wire lying in said elongated opening are compressed upon tightening of the set screw.’5

The references cited are: Chester, 51,144, November 28, 1865; Rodgers, 217,023, July 1, 1879; Patterson, 311,914, February 10, 1885; Lawrence, 1,001,054, August 22,1911; Chappuis, 1,309,240, July 8, 1919; Gentseh, 1,495,017, May 20, 1924; German, patent, 338,092, June 13, 1921; German patent, 351,470, April 7, 1922.

The drawings disclose a clamp in the form of a continuous sleeve with an opening extending longitudinally thereof and having a groove facing the opening. The rod and wire go through the opening, the wire fitting into the groove in position to be pressed tightly against the rod by the manipulation of a clamping screw or threaded bolt that tightens the clamp. The effect of this pressure is to distort the wire in conformity with the contour of the groove, thus insuring a good electrical eontaet.

The brief of appellant in an interesting and instructive .manner elucidates the problem which was met by appellant and which is claimed to have been solved by the comparatively simple device at issue. Appellant’s device is conceded by the solicitor for the Patent Office to be novel and useful, but invention is denied.

Lawrence disclosed a continuous grooved sleeve for clamping the lower end of a wire to a ground rod, and Gentseh shows the clamping together of two different sized wires by means of a set screw to form an electrical contact. The Gentseh device shows a Y-shaped cross-section, into the apex of which the small wire fits, and the large wire is clamped against it by the manipulation of the screw.

Claims 3, 6, and 7 were rejected on the foregoing references.

An affidavit by one Stanton S. Hertz, who sets forth qualifications entitling him to credit as having expert knowledge of the art, appears in the record. This affidavit gives reasons for the insistence that the Lawrence and Gentseh devices are impractical, if not wholly inoperative, and points out advantages possessed over them by appellant’s device.

The Lawrence drawing shows a device which consists of a rod having a rounded head; the rod being designed for driving into the earth. Below this head is a thimble which contains a groove. The specification says:

“When the device is to be used, the wire to be grounded is passed through the groove 5 between the rod and the thimhle, and the lower end of the wire is bent up. 4! * The rod is then driven into the ground until the wire is at the proper tension, thereby making a tight joint without the use of solder.”

It is further stated that the wire is held at proper tension, not only by having its end turned up around the lower edge of the thimble, and by being wedged between rod and thimble, but also “owing to the fact that above the thimble 4 the wire Vill be given an outward bend around the head. * " * ”

Apparently, in the Lawrence device it is intended that the thimble which clamps the conducting wire to the ground rod is to be above the ground, and tension in the ground wire is produced by driving the rod and tightening the thimble upon it by this driving process, or by driving the thimble upward independently after the rod has been driven to the required depth in the ground.

It is represented that in this art it is important that the ground wire have a straight line of discharge, and appellant’s device provides this, while the Lawrence device has the wire bent at the bottom and also kinked around the head of the rod above the ground. Appellant compresses the wire against the rod, not by any driving operation, but by manipulating the screw, before the driving. After the desired assembly is secured, the whole device, including the clamp, is driven into the ground, the clamp going below the surface level.

It seems to us that this presents a combination which materially differs from Lawrence, in the result produced.

The Gentseh clamp was not designed to be used in connection with ground rods, but is for clamping together two conducting members, such as an ordinary electric conduit wire and a bus wire. It does show a pressing of these together by tightening a set screw, but there is no design that the combination so formed is to be used by being driven into the earth, nor does it seem to us that it would be practical, or even possible, effectively so to use it.

It seems to us that, while appellant’s combination as disclosed and claimed in claims 3, 6, and 7 is marked by simplicity, nevertheless he may justly be held to have exhibited more than mere mechanical skill in evolving it. It is admittedly novel and useful, and we think discloses patentable invention.

Claims 4 and 5 relate to the clamp per se with details of construction. They were rejected upon the German patent No. 351,-470, in view of Lawrence. The Board said:

“These claims differ from the German patent No. 351,470 by stating that the opening is adapted to receive a ground rod and ground wire. It would not be a matter of invention to shape the opening in the German reference to receive a ground rod and a ground wire instead of the two conductors shown in the patent. Especially is this true in view of Lawrence. The claims further distinguish from the German patent by including reinforcing flanges around the top and bottom edges of the sleeve. It is believed that there is nothing inventive in the provision of these strengthening flanges.”

In this we find no error.

The decision of the Board of Appeals is modified, being reversed as to claims 3, 6, and 7, and affirmed as to claims 4 and 5.

Modified.


author: GRAHAM, Presiding Judge.

text:
    In re GRUPE.
    Patent Appeal No. 2696.
    Court of Customs and Patent Appeals.
    April 27, 1931.
    Henry J. Lucke, of New York City (Walter F. Kaufman, of Lancaster, Pa., and Paul A. Blair and J. H. Kilcoyne, both of Washington, D. C., of counsel), for appellant.
    T. A. Hostetler, of Washington, D. C. (Howard S. Miller, of Washington, D. C., of counsel), for Commissioner of Patents.
    Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   GRAHAM, Presiding Judge.

This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming the decision of the Examiner in rejecting claims 1 to 9, inclusive, of appellant’s application for a patent upon an alleged invention of new and useful improvements in cork envelopes for laundry rolls. The rejection was made on the following references: Smith, 456,068, July 14, 1891; Smith, 484,345, October 11, 1892; Stone, 842,356, January 29, 1907; Charlton, 1,149,551, August 10, 1915; Busch, 1,532,-682, April 7, 1925; Decker, 1,570,231, January 19, 1926.

We have selected three claims as typical of the claims at issue, and which are as follows :

“2. An envelope for rolls of mangles and the like and subject to laundering temperature of 212° F. comprising a mass of flat cork particles bound to one another by resins natural in cork, said envelope extending sub:stantially continuously from end to end of the roll and means for removably locking the cork envelope to the roll.”
“8. A padding for laundering machines and subject to -laundering temperatures of 212° F. comprising a mass of cork particles of substantially flat formation bonded to one another to be disposed with their flat faces substantially parallel to one another and under pressure and at a temperature materially exceeding 300° Fahrenheit.”
“9. A facing for rolls for laundering machines and subject to the temperature of 212° F. comprising a mass of cork particles of substantially flat formation bonded under pressure to one another to be disposed in planes substantially radially and substantially at right angles to the axis of the roll and at a temperature materially exceeding 300° Fahrenheit.”

The device involved herein is a cork padding for covering an ironing device, specifically a roll, in a pressing machine. The specification discloses that the appellant’s product is composed of flat pieces of cork laid in a mold parallel to each other, and then subjected to tamping and pressing operations under heat of such a degree that the natural resins of the eork exude and form a binder by which the entire mass is cemented into one homogeneous element. The mold in which the padding is made is in a semieylindrieal or other similar form, so that the padding, when completed, will fit the roll of the mangle upon which it is to be used. As shown by figure 6 of applicant’s drawings and as claimed in said claim 9, when this eork padding is in place upon the laundry machine, the flat partieles in the padding occupy a radial position at right angles to the axis of the roll upon which the padding is placed. It is plain from a study of the specification and drawings that the cork particles are to be flat and are to be placed in the mold as above set forth.

It is claimed a material made in this way will resist high temperature and the wear and tear incident to a laundry mangle much better than any other eork material or composition 'ever yet devised, and therein accomplishes a new and useful result not heretofore known to, or practiced by, the art.

In connection with this elaim the affidavit of Edward Cornell Emanuel, which was executed March 26, 1931, is proffered by counsel for appellant, with the request that it be filed and considered here. We said in Re Fisher, 37 F.(2d) 628, 17 C. C. P. A. 864, and again in Re Coley, 40 F.(2d) 982, 17 C. C. P. A. 1174, that, under the statute, this court would consider nothing except such matters as appear upon the record and were considered by the tribunals of the Patent Office. The affidavit, therefore, will not be received, filed, or considered by the court.

A consideration of the references, in view of the concurring action of the Patent Office tribunals, is essential. The reference Smith, 456,068, shows a cork composition made by taking cork partieles of various sizes and shapes and subjecting the same to heat and resulting cementation together, by means of the natural resin of the cork. The reference Smith, 484,345, shows a similar process, the partieles being pieces of any size, such as ordinary cork refuse. Stone shows an apparatus for, and method of, making cork sheets or strips by the use of granulated cork, which is passed in a layer through a heater, where it is compressed and by which it is cemented together into a strip. Charlton shows a squeeze roll having detachable' lags carried by a core, and with a curved outer covering, preferably rubber, for use in washing machines.

Busch is said by the Patent Office tribunals to be the most pertinent reference herein. The Busch product is a covering for rolls used in textile machines, and is composed of cork. In making this eork covering for such rolls, Busch takes granules of cork of various sizes and forms and compresses the same together with a binder of glycerine-gelatine, so that the granules become flattened and bound together by the binder into one homogeneous mass. Strips of this material are then taken for the covering of such textile rolls, so that when the same are in place upon the outer surface of the rolls, the flattened granules in the layer will be disposed “edgewise to the working surface of the roll.” The reference Decker shows a padding for ironing rolls composed of blocks of the desired thickness, constructed of ground cork, compressed together.

It is quite apparent there is nothing new or. novel in the use of detachable padding for mangle rolls, nor is there anything new or novel in the use of a padding composed of artificial eork. The appellant insists, however, that he has added something to the art in the particular kind of a cork padding he has devised. It appears to us that in this view he is justified. None of the references shows a material such as he has produced. The nearest approach is Busch, and, while Busch shows a flattening of the cork particles of which his roll is composed, it is quite apparent that the same effect is not produced by the flattening of an irregularly shaped granule of eork, as that which is produced by a particle of cork whieh is uniformly flattened before it is used. In the former ease, the flattened granule must be and will be somewhat irregular in shape. In the latter case this will not be true. We are unable to say that this will not produce a new and useful result. It is a new product, not known to the art, and it appears that the appellant has made an invention. We also are unable to see that the products shown by the references, and appellant’s product, are equivalents.

It is argued by the solicitor for the Patent Office that appellant’s claims describe his product by the process of making it, and he insists that our decision in In re Butler, 37 F. (2d) 623, 17 C. C. P. A. 810, holds that the process by which the article is made is immaterial in the consideration of a product claim. The ease cited goes further than the argument made, and holds that, where an inventor has created a new thing which cannot be properly discriminated in a claim from the. prior art otherwise than by reference to the process of producing it, such reference is proper. Even if the contention of the solicitor were correct, omitting any portion of the claims in issue which might be held to be descriptive of the process, we are of opinion sufficient remains to describe a product which is new and inventive.

The appellant has shown in his drawings, figure 7, and has described in his specification, as one possible specific form of his product, a padding formed “from a mixture of relatively thick particles 31 and thin particles 32, as by intermixing granular cork waste or ground cork disk waste with 'ground’ cork flakes in varying proportions, •s * *» TMs specific form of appellant’s disclosure is fully anticipated by the references. The claims in issue, however, are not framed on this form.

We are of opinion that the appellant’s claims ,1 to 9, inclusive, should be allowed, and the decision of the Board of Appeals is hereby reversed, and patent will issue on said claims. : ■ ,

Reversed.


author: GARRETT, Associate Judge.

text:
    HEADLEY & THOMPSON v. BRIDGES.
    Patent Appeal No. 2872.
    Court of Customs and Patent Appeals.
    April 29, 1931.
    Byrnes, Stebbins, Parmelee & Blenko, of Pittsburgh, Pa. (Clarence P. Byrnes and Earle L. Parmelee, both of Pittsburgh, Pa., of counsel), for appellant.
    Emery, Booth, Varney & Holcombe, of Washington, D. C. (Amasa M. Holcombe and Charles F. Miller, Jr., both of Washington, D. C., of counsel), for appellee.
    Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   GARRETT, Associate Judge.

This is an appeal from a decision of the Board of Appeals of the United States Patent Office, affirming a decision of the Law Examiner, dissolving an interference as to certain counts on the ground of nonpatentability.

The cause was advaneé'd upon our docket in order that it might be heard upon the single question of jurisdiction; it being agreed that, if the court finds itself without jurisdiction to determine now the question of patentability, the appeal must be dismissed to the end that proceedings in the Patent Office may be resumed.

The motion to advance is accompanied by a memorandum of facts, agreed to by counsel for the respective parties, from which it appears that 111 counts were tentatively embraced in, or suggested for, the interference.

Of these, 78 are involved in the jurisdictional question. All of these 78, except No. 7, were twice rejected by an Examiner in ex parte proceedings without being suggested for the interference, but, upon appeal in the ex parte cases, the decisions of the Examiner were reversed, and the claims, which became the counts, were allowed to Headley & Thompson, by that tribunal of the Patent Office, then designated as the “Board of Examiners-in-Chief”; the proceedings having been prior to the Act of March 2,1927, which act changed the designation to that of “Board of Appeals.”

Following this reversal, the interference was declared with Bridges, on September 3, 1927, being interference No. 55,728. The counts not here involved in the jurisdictional question were subsequently added.

Both parties moved to dissolve; Bridges upon the ground of nonpatentability. Under the rules of the Patent Office, the motions to dissolve were referred to a Law Examiner. This official sustained the Bridges motion, and appeal was taken to the Board, which had then become, by statute (Act of March 2, 1927), the Board of Appeals. That tribunal affirmed the decision of the Law Examiner, and it was from the Board’s decision that the present appeal was taken to this court.

Therefore, as to the 78 cpunts, the question of priority has never been before the tribunals of the Patent Office, and there has been no adjudication thereon. The effect of holding them nonpatentable in the interference proceeding has been to dissolve the interference as to them, and it stands dissolved in that respect, unless we should find that we have jurisdiction to review the question here, and should later find them patentable. Field v. Colman, 47 App. D. C. 189.

The 33 counts that are in the interference have yet to be tried in the Patent Office upon the issue of priority, and are not claimed to be involved in the question of jurisdiction now before us.

The recent appeal in Sundback v. Blair and Perrault, dismissed by us February 25, 1931, 47 F.(2d) 378, 380,18 C. C. P. A.-, the opinion being by Judge Lenroot, involved the question of jurisdiction, but arose upon a state of facts somewhat different from the facts of the instant case.

In the brief for Bridges in the present case, it is said, referring to the Sundbaek Case:

“The decision of the Board of Appeals sustaining the decision of the Examiner in the interference.automatically dissolved the interference, the motion being effective as to all of the counts therein. Hence in the appeal to this Court Sundbaek had no standing whatever as a party to an interference because that interference was dissolved in toto with no decision on the issue of priority of invention. He had no standing before this Court as an applicant appealing from the decision of the Board of Appeals holding the claims unpatentable, because the Examiner had not twice rejected the claims on that ground.
“Thus on comparing the facts in the Sundbaek v. Blair and Perrault Case with those of this appeal, the questions of jurisdiction as presented by the respective records before the Court are fundamentally different, and it is not surprising that the Court held that it did not have jurisdiction of the Sundbaek Case, because there had not been a second rejection by the Examiner of the claims and there had been no award of priority; but this decision does not control the present case and the- reasoning upon which it is based would seem to require an opposite holding as applied to the facts presented upon this appeal.”

It will be observed, however, from a reading of it, that our decision in the Sundbaek Case did not rest upon the matter of there not having been two rejections by the Examiner. This element was nowhere mentioned in the opinion, nor was it a factor in deciding the case.

Upon the contrary, under the reasoning of that ease, the number of rejections would not have affected our conclusion, which rested solely on the ground that the appeal then before us was not from a decision which the Board of Appeals was required by statute to make; the appeal to the board being from a decision of a Law Examiner, who is not a statutory tribunal. We did not specifically refer to the interlocutory character of the motion to dissolve, nor to the fact that thére had been no adjudication of priority. We did say therein:

“Nothing herein should be construed as intimating that, if the decision of the Board of Appeals had been based upon an appeal to it from, a decision of a primary examiner or examiner of interferences, dissolving an interference, we would entertain jurisdiction. It is unnecessary for us to decide that question.”

In the instant ease the appeal to the Board of Appeals was also from a decision by a Law Examiner, and hence it might be held to be controlled by the Sundbaek decision. But arguments are here presented and questions are here raised, which were not there urged or discussed. These lead us to feel that we should here go further than we did in that case and determine whether we have jurisdiction to pass upon and adjudicate the question of patentability in an interference proceeding in which there has been no award of priority by the Board of Appeals of the Patent Office.

Both parties are here insisting that we do have such jurisdiction.

The brief in behalf of Headley & Thompson, insists that the language of section 482, Rev. St. (35 USCA § 7), “precludes construing the word ‘examiners’ as applying to jurisdiction ‘in interference cases,’” and presents argument on this insistence. The brief further says:

“Appellant has carefully reviewed the decision of this Court under date of February 25, 1931, in the ease of Sundback v. Blair and Perrault, patent appeal No. 2599, Interference No. 55,743. It is respectfully submitted, however, that such decision is predicated on a judicial interpretation of sections 4904, 4909 and 4911 (35 USCA §§ 52, 57, 59a), without regard to the jurisdiction of the Board of Appeals as expressly set forth in section 482 of the Revised Statutes (35 USCA § 7).
“The words ‘the decision of the board of appeals’ as used in section 4911 are applicable to any decision which the Board of Appeals has the right by statute to enter in any case. Having been expressly given the statutory right under section 482 to review and determine decisions ‘in interference eases,’ the decision of the Board of Appeals in an interference case is subject to appeal to this Court.”

The full text of section 482, Rev. St., as amended by Acts of March 2, 1927, § 3, and April 11, 1930, § 2 (35 USCA § 7), respectively, is as follows:

“The examiners in chief shall be persons of competent legal knowledge and scientific ability. The Commissioner of Patents, the first assistant commissioner, the assistant commissioners, and the examiners in chief «hall constitute a board of appeals, whose duty it shall be, on written petition of the appellant, to review and determine upon the validity of the adverse decisions of examiners upon applications for patents and for reissues of patents and in interference cases. Each appeal shall be heard by at least three members of the board of appeals, the members hearing such appeal to be designated by the commissioner. The board of appeals .«hall have sole power to grant rehearings.”

Prior to the Act of March 2, 1&27, the statutes had provided: First (section 4909, Rev. St.), for appeals to the Board of Examiners-in-Chief from (a) the decisions of “Primary Examiners,” twice rejecting applications for.a patent, or for the reissue of a patent, (b) decisions of the Examiner in charge of interferences, in an interference case; second (section 4910, Rev. St.), for appeals to the Commissioner in person, “if such party is dissatisfied with the decision of the Examiners-in-Chief,” and, third (section 4911, Rev. St.), appeals to the Court of Appeals of the District of Columbia from the decisions of the Commissioner in (a) ex parte cases involving applications for patents or reissue of patents, and (b) in any interference case by “any party aggrieved by” the Commissioner’s decision.

The Act of March 2, 1927 (section 5) amended the existing law relating to appeals within the Patent Office by (a) providing a tribunal designated as the “Board of Appeals” instead of as theretofore the “Board of Examiners-in-Chief,” and (b) by (section 6) repealing section 4910, Rev. St., thus eliminating appeals to the Commissioner in person. The law relating to appeals within the Patent Office is now embraced in section 4909, Rev. St.. (35 USCA § 57), which reads as follows:

“Every applicant for a patent or for the reissue of a patent, any of the claims of which have been twice rejected, and every party to an interference, may appeal from the decision of the primary examiner, or of the examiner in charge of interferences in such case, to the Board of Examiners in Chief, having once paid the fee for such appeal.”

The Act of March 2, 1927 (section 8) also amended the law relating to appeals to, or proceedings in, the courts, by providing that they should be taken directly from the Board of Appeals. The law is now (amended by Act March 2, 1929, § 2) embraced in section 4911, Rev. St. (35 USCA § 59a):

“If any applicant is dissatisfied with the decision of the board of appeals, he may appeal to the United States Court of Customs and Patent Appeals, in which case he waives his right to proceed under section 63 of this title. If any party to an interference is dissatisfied with the decision of the board of appeals, he may appeal to the United States Court of Customs and Patent Appeals, provided that such appeal shall be dismissed if any adverse party to such interference shall, within twenty days after the appellant shall have filed notice of appeal according to section 60 of this title, file notice with the Commissioner of Patents that he elects to have all further proceedings conducted as provided in section 63. Thereupon the appellant shall have thirty days thereafter within which to file a bill in equity under said section 63, in default of which the decisions appealed from shall govern the further proceedings in the case.' If the appellant shall file such bill within said thirty days and shall file due proof thereof with the Commissioner of Patents,- the issue of a patent to the party awarded priority by said board of appeals shall be withheld pending the final determination of said proceeding under said section 63.”

It will be observed that section 4911, as quoted, contains the phrase: “ * * If any party to an interference is dissatisfied with the decision, K * ® he may appeal, a- e¡ «a ipjjg prior language relating to interference appeals to the court was, “ * * Any party aggrieved by a decision * * * may appeal, *' * -* ” (35 USCA § 59, note) but, as related to ex parte appeals, it was “dissatisfied with.”

The phrase “is dissatisfied with” also appeared in the former section 4910, Rev. St., which section was repealed, being there used in connection with appeals from the Board of Examiners-in-Chief to the Commissioner. This change in phraseology in section 4911, Rev. St., is urged to have a significance. It will be hereinafter discussed.

By an Act of March 2, 1929 (45 Stat. 1475), the jurisdiction in patent appeals of the Court of Appeals of the District of Columbia was transferred to this court. By the terms of this act the latter court simply became the successor in jurisdiction of the former, and there is no language in the. act which in any wise changed the character of such jurisdiction. There was nothing in the amendatory Act of April 11, 1930, which is here pertinent.

The jurisdiction conferred upon the Court of Appeals of the District of Columbia in appeals from the Patent Office was embraced in section 9 of the act creating that court, approved February 9, 1893, 27 Stat. 434— 436, chapter 74 (35 USCA § 59, note). The section reads:

“The determination of appeals from the decision of the Commissioner of Patents, now vested in the General Term of the Supreme Court of the District of Columbia, in pursuance of the provisions of section seven hundred and eighty of the Revised Statutes of the United States, relating to the District of Columbia, shall hereafter be and the same is hereby vested in the Court of Appeals created by this act; and m addition, any party aggrieved by a decision of the Commissioner of Patents in any interference ease may appeal therefrom to said Court of Appeals.”

The foregoing section superseded the old provision of section 4911, Rev. St., which authorized appeals, except in interference cases, from the decision of the Commissioner of Patents to the Supreme Court of the District of Columbia by a party “dissatisfied with” the Commissioner’s decision. This was by the Act of July 8,1870. It seems that until the act of 1893, creating the Court of Appeals of the District of Columbia, there was no tribunal to which parties in interference cases might carry a direct appeal from the Commissioner’s decision, and in the act of 1893 the jurisdiction of the said Court of Appeals was limited to two classes of cases, to wit:

(1) Ex parte cases brought by applicants for patents when the claims had been twice rejected.

(2) Interference cases in which the appealing party was “aggrieved by” a decision of the Commissioner.

Prior to the said act creating said court such proceedings as were had by the courts relative to interferences were proceedings in equity.

The Court of Appeals of the District of Columbia had occasion quite early in its existence to construe section 9, above quoted, and determine the question of its jurisdiction thereunder, in the case of Westinghouse v. Duncan, reported in 2 App. D. C. 131. From the syllabus of that case, we quote:

“1. An appeal does nbt lie to this court from a mere interlocutory or preliminary order or ruling of the Commissioner of Patents in an interference ease, such as a ruling that there is or is not an interference, or an order refusing to investigate an alleged interference; but only from the final decision of the commissioner in such a ease determining the question of the priority of invention.
“2. A decision of the Commissioner of Patents from which an appeal will lie to this court, can only be made after the primary examiner, and, on appeal from him, the board of Examiners-in-Chief, have considered the case and made findings therein.”

In Podlesak v. McInnerney, 26 App. D. C. 399, the said Court of Appeals held that it would take jurisdiction to determine the question of the right of a party to make a claim, “as an ancillary question to be considered in according priority of invention,” because sueb right “goes to the very foundation of an interference, for, if a party has not such right, the interference falls.”

The said court consistently followed its holding in Westinghouse v. Duncan, supra, throughout the entire period of its jurisdiction over appeals from the Patent Office in interference eases, and again and again reiterated the doctrine that actions upon questions arising under motions to dissolve, except upon that of the right to make the claims, which is fundamental, are interlocutory proceedings, when unaccompanied by an adjudication of priority rendered in the manner required by the statutes. ' It also consistently and uniformly held that the court had jurisdiction, in such cases, only of appeals from the decisions by the statutory tribunals of the Patent Office adjudging priority. A review of the many- eases is not deemed necessary here. Among them are Allen v. United States ex rel. Lowry, 26 App. D. C. 8; In re Fullagar, 32 App. D. C. 222; Cosper v. Gold, 34 App. D. C. 194; Carlin v. Goldberg, 45 App. D. C. 540; Parker v. Craft et al., 49 App. D. C. 88, 258 P. 988; Cowles v. Rody, 49 D. C. 135, 261 P. 1015.

The last three eases arose over the question of whether the appellate court had jurisdiction in appeals in interference cases where the tribunal of the Patent Offiee, from which the appeal to the court was taken, had held the claims nonpatentable without any award of priority. In each instance the court held that the finding of nonpatentability was an interlocutory matter, and declined to take jurisdiction.

The ease of Allen v. United States, supra, is worthy of particular note, first, because of the comprehensive review of the patent statutes and Patent Offiee practice there given by Mr. Justice Duell of the Court of Appeals of the District of Columbia; and, second, because the ease found its way to the Supreme Court of the United States and the principle of the issue here involved was there adjudicated. Lowry v. Allen, 203 U. S. 476, 27 S. Ct. 141,144, 51 L. Ed. 281. The concluding portion of the opinion of the Supreme Court is:

“The statute is explicit. It limits the declaration of interferences to the question of priority of invention. Section 4904 provides that in case of conflict of an application for a patent with' a pending application or with an unexpired patent (as-in the ease át bar), the Commissioner shall give notice thereof, ‘and shall direct the primary examiner to proceed to determine the question p£ priority of invention.’ And it is provided that the Commissioner shall issue a patent to the party adjudged the prior inventor, unless the adverse party appeals from the decision of the primary examiner or examiners in chief, as the ease may be. The history of the sections and the rules are gone into at length by the court of appeals in its opinion. We need not repeat the discussion. It answers the detailed reasoning of plaintiffs in error. We concur with the views expressed,, that the statutes provide only for appeals upon the question of priority of invention. Appeals on other questions are left to the regulation of the Patent Offiee under the grant of power contained in section 483.”

It would seem that the doctrine of stare decisis applies in the instant case unless the Congress by subsequent legislation has changed the law.

In the briefs for both parties it is suggested that amendments to section 482, Rev. St., by' the Act of March 2, 1927, § 3, when construed with sections 4904, 4909; and 4911, Rev. St., confer the jurisdiction it is here sought to have us take.

It is pointed out that in amending the said section 482 the word “review” was sub • stituted for the word “revise,” so that the Board is now clothed with authority' “to review and determine upon the validity of the adverse decisions * * whereas the Examiners-in-Chief, before the amendatory act, had the duty “to revise and determine. * * (Italics ours.)

We are unable to see wherein the substitution of “review” for “revise” in the section defining the duties of the Board of Appeals affects our jurisdiction, which is the same in all respects as was that of the Court of Appeals of the District of Columbia, defined in section 9, supra, of the act creating that court, and now expressed in section 4911, Rev. St., supra.

It is suggested further that section 4911, Rev. St., now provides that any party to an interference who “is dissatisfied with the decision * * * may appeal, * * * ” whereas it formerly read “ * * * any party aggrieved by a decision * * * may appeal.” (Italics ours.)

Here again we fail to see wherein the change in phraseology affects' the matter of our jurisdiction. It is not the manner of expressing the state of mind of an appellant relative to a decision which fixes jurisdiction, but the nature of the decision itself and, as o£ course, the source from which the decision comes.

The phrase “is dissatisfied with” relating to an ex parte appeal received construction by the Court of Appeals of the District of Columbia in Moore v. United States ex rel. Chott, 40 App. D. C. 591, 597, the court saying:

“The right of appeal granted by sec. 4911, Rev. Stat. U. S. Comp. Stat. 1901, p. 3391, is very broad, and embraces every application for patent, ‘except a party to an interference’ who ‘is dissatisfied with the decision of the Commissioner.’ We have held this to include any official action of the Commissioner which was decisive of an applicant’s right to a patent, or which, in effect, operated as a rejection of the claims of the application. In the ease of Re Mattullath, 38 App. D. C. 497, the court, speaking through its chief justice, said: ‘The right to appeal from a final decision of the Commissioner of Patents is determinable by its substance and effect, rather than its form. Moore v. Heany, 34 App. D. C. 31-39; Re Selden, 36 App. D. C. 428-431.’ ”

The action of the Commissioner of Patents, complained of in'the foregoing Moore Case, was, as has been stated, taken in an ex parte proceeding, and was a holding that, an applicant was not entitled to a patent, although the Board of Examiners-in-Chief (now the Board of Appeals) had held otherwise. By reason of it being a final decision by the Commissioner of nonpatentability, the court took jurisdiction under the old section 4911, Rev. St. The words mean the same, it seems to us, in an interference proceeding, as they do in one ex parte, and the decision, which the party “is dissatisfied with,” in order to be appealable to this court, must be a final decision with an award of priority.

We find nothing in the history of the legislation, and no authority has been brought to our attention, indicating that, as used in the statutes under consideration, there is any distinction between the phrases “aggrieved by” and “dissatisfied with” which affects the question of jurisdiction.

Had Congress had it in mind to change the jurisdiction in a matter so important and far-reaching as this, we feel that it would have done so in language so clear as to leave no question relative to its meaning, and would not have attempted to do so merely by changing “revise” to “review” and “aggrieved by” to “dissatisfied with.”

The brief for Bridges suggests that, in view of certain amendments to section 482, Rev. St., by the Act of March 2, 1927, § 3 (35 USCA § 7), particularly that respecting the provision of former law whereby the Examiners-in-Chief were required to perform such duties as the Commissioner might assign them, the Board of Appeals, as therein created, now has jurisdiction only of appeals, therein provided for, and no longer may take jurisdiction of appeals arising simply under the rules and practice of the Patent Office and not authorized by statute, and says:

“Therefore, applying the doctrine of the Sundback case, the jurisdiction of the Board of Appeals under the present statute depends upon what interpretation be given to the words “adverse decisions of examiners”; and in this respect it is coextensive with that of the Court of Customs and Patent Appeals in appeals from the Patent Office, Accordingly, if the Board of Appeals renders a decision in a matter outside of its statutory jurisdiction, and ‘if any applicant is dissatisfied with the decision of the. Board of Appeals,’ it would seem to be the duty of this Court to take jurisdiction and determine whether or not the Board of Appeals had statutory authority to decide the matter.”

It does not seem to us that the decision as to our own jurisdiction in this ease requires a determination of, or an expression upon, that issue. Whether the Board of Appeals had jurisdiction in the instant case under the theory upon which we are deciding the general issue is not here material, because it made no adjudication of the question of priority. Had it made such an adjudication, we might then have been confronted with, and have found it necessary to determine, the question of whether the proceedings back of it, and its own proceeding, were in accordance with the statute.

Following the long line of authorities cited, and finding no enactments which seem to alter the statutes therein construed, or to render permissible any change in those constructions, we adhere to the doctrine that the only question of which we have jurisdiction in interference eases is that of priority, and that the only appeals that we may entertain in such cases are appeals from decisions of the Board of Appeals of the Patent Office, making a final award thereof.

We further hold that determination of the patentability or nonpatentability in an interference ease is an interlocutory proceeding, and we have no jurisdiction of an appeal from a decision upon it; no adjudication of priority having been made by the tribunal from which the appeal is taken.

We have not found it necessary to a decision of the issue here involved to review the rules and practice of the Patent Office, nor to discuss the respective functions of “Examiners,” “Law Examiners,” “Primary Examiner” and “Examiners of Interferences.”

The appeal is dismissed for lack of jurisdiction, there having been no award of priority by the Board of Appeals.

Dismissed.


text:
    In re FAGEOL.
    Patent Appeal No. 2717.
    Court of Customs and Patent Appeals.
    April 29, 1931.
    Strauch & Hoffman, of Washington, D. C. (Jas. A. Hoffman and Wm. A. Strauch, both of Washington, D. C., of counsel), for appellant.
    T. A. Hostetler, of Washington, D. C. (Howard S. Miller, of Washington, D. C., of counsel), for Commissioner of Patents.
    Before GRAHAM, Presiding Judge, and BLAND, HATPIELD, GARRETT, and LENROOT, Associate Judges.
   LENROOT, Associate Judge.

This is an appeal from a decision of the Board of Appeals of the United States Patent Office, affirming a decision of the Examiner, denying patentability, in view of the prior art, of claims 4, 5, 6, 7, 8, 11, and 15 to 19, inclusive, and claims 21, 23, 24, 30, and 31 of appellant’s application.

Claims 4, 11, 19, 23, and 31 are illustrative of the claims in issue, and read as follows:

“4. A road vehicle comprising a frame; a pair of substantially parallel axles disposed at one end of said frame; a pair of ground engaging wheels supporting each of said axles; springs interconnecting said axles and said frame; said springs being pivoted to the frame intermediate their ends and connected to said axles at their ends, the axes of said connections and pivot lying substantially in the same plane under normal load conditions whereby substantial rocking movement of the frame in a horizontal plane due to road irregularities is prevented:”
“11. The combination as set forth in claim 8 together with brake and steering actuating members carried by said wheels independently of said frame; brake and steering control members carried by said frame; and connections between said frame and said wheel carried members compensating for the relative motion of said wheels with relation to said frame, said connections being made to said frame at points that are approximately in transverse alignment with the points of connection between the frame and springs.”
“19. A road vehicle comprising a frame; a pair of axles at each end of said frame; means resiliently connecting said axles to said frame; dirigible wheels on one pair of said axles; non-dirigible wheels on said other pair of axles adjacent non-dirigible wheels on the same side of the vehicle being spaced so that their peripheries are relatively close together; resilient tires on said non-dirigible wheels; and means to simultaneously steer the dirigible wheels.”
“23. A road vehicle comprising a frame, a plurality of axles supporting each end of said frame, springs interconnecting said frame and the axles at each end thereof in a manner permitting substantial swinging movement of said axles relative to spaced frame supported axes located substantially in the same horizontal plane, wheels on said axles, means to steer said vehicle carried by the frame, means to brake said vehicle carried by the frame, and elements coupling said steering and braking means to said wheels, said elements being arranged to swing substantially about said axes, whereby the swinging movement of the wheels and axles is substantially unrestricted by the elements that couple the steering and braking means to the wheels.”
“31. A road vehicle comprising a frame, a pair of substantially parallel axles supporting one end of said frame, springs interconnecting said axles and frame, said springs being pivoted to the frame between" the ends thereof on an axis transverse to the frame and being secured to said axles at their ends whereby the axles are capable of substantial swinging movement about said axis, brake control mechanism on said frame, brake mechanism supported by each axle and means connecting said control mechanism and the brakes of adjacent axles at the same side of the vehicle comprising an equalizing link extending transversely of the frame and pivoted between its ends on an axis that lies substantially in the vertical plane containing said first named axis, and arms of substantially equal length each arm being pivotally connected adjacent one end to an end of said equalizing lever and being connected at its opposite end to the brake mechanism on one of said axles.”

The references are: Woods, 884,883, April 14, 1908;' Pratt, 888,737, May 26, 1908; Hallner, 1,234,014, July 17, 1917; Sarasin et al., 1,281,847, October 15, 1918; Mustad, 1,332,949, March 9, 1920; Holle, 1,500,320, July 8, 1924; Ford, 1,503,454, July 29, 1924; Rivas, 1,534,810, April 21, 1925; Templin, 1,565,526, December 15, 1925. Wilkinson (Brit.), 183,510, August 3, 1922; French patent, 553,431, February 9,1923. .

The alleged invention is described in the decision of the Board of Appeals as follows:

“This application relates to the construction of an 8-wheeled automobile having two non-dirigible wheels at the rear on each side arranged in tandem and two dirigible wheels on each side at the front arranged in tandem. The axles for both the front and rear wheels of the vehicles are secured between the outer ends of two substantially parallel leaf springs and the springs support the frame by a bracket pivotally connected to them midway between the axles and substantially in alinement with the axles when the vehicle is loaded. There are ball and socket connections between the outer ends of the springs and the axles. The brake actuating means and the steering means are supported in such a manner as to apply the power substantially at the point of pivotal connection between the frame bracket and the springs in order to prevent application of the brakes or interference with the steering gear as the frame moves, due to the spring action when inequalities in the road are encountered.”

Certain of the claims of appellant’s application were allowed.

While there are a large number of claims here involved, and each claim contains a large number of elements^ the questions before us are quite simple and involve but few elements.

Appellant in his brief has divided the claims into four groups, as all of the claims in each group involve the same question.

We will consider each group separately: the first group comprises claims 4, 5, 6, 7, 8, 17, 18, and 21. The element in each of said claims, which appellant contends constitutes invention, is that which provides that the pivot about which the trucks of the vehicle swing shall- be placed at a point which is substantially in the plane of the wheel centers.

It is contended by appellant that in the prior art said pivots or trunions were located substantially above said plane, and that a very objectionable fore and aft movement resulted therefrom; that appellant has practically eliminated this objectionable movement by positioning the pivot as above indicated.

This group of claims was, so far as this element is concerned, rejected by the Board upon the references Mustad, Sarasin, and Ford. The disclosures in both the Mustad and Sarasin patents show said pivot placed substantially above the plane of the wheel centers, and it is clear to us that the fore and aft movement above mentioned must result from so positioning the pivot. The Ford reference discloses a railway car in which a pair of wheels are pivotally connected by springs above and below the axles to a suspension frame; here the pivot is placed substantially upon a line with the center of the wheels. It is observed, however, that this pivot is at the end of a transverse spring bolster. While the Board did not consider this a material distinction, we think it should be considered in connection with the fact that a railway car, running over smooth rails, does not meet obstacles which a vehicle running upon the ground meets, and Ford apparently had no purpose or thought or appreciation that the particular location of his pivot would serve any purpose of preventing any fore and aft motion, and there is nothing in the patent to suggest that it would do so.

We do not think that Ford is a proper reference to the element now under discussion.

Witli respect to the Mustad and Sarasin references, it is conceded that the position of the pivot is substantially higher than shown in appellant’s disclosure, but the Board was of the opinion that “it is entirely obvious that the nearer the supports are located to the lines between the axles from the frames, the more this objectionable motion will be eliminated.”

This is the crucial question upon this branch of the case. We cannot agree with the Board that this was entirely obvious, and that any skilled mechanic, observing this objectionable motion, would remedy it by placing the pivot where appellant has placed it. At least, there is such substantial doubt concerning it that it should be resolved in appellant’s favor.

This conclusion is supported by the fact that three of the references involve a somewhat similar construction to that of appellant, and in each of said patents the pivot is placed at a point substantially above the plane of the center of the wheels. If the desirability of placing the pivot at the point that appellant has placed it was obvious, it would seem that some of the inventors in the prior art would have so placed it.

We hold that the Board of Appeals erred in rejecting this first group of claims.

The next group of claims comprises claims 15, 16, 30, and 31.

These claims were rejected on the French patent to Goodyear, in view of the United States patent to Hollé. The Board held that the elements of these claims were disclosed by Goodyear except as to the equalizing link referred to in claim 31, and equivalent descriptions in the other claims of this group. It further held that the reference Hollé discloses an equalizer of similar construction, and that it would not involve invention to employ such an equalizer with the structure of the Goodyear patent.

We agree with the conclusion of the Board that this group of claims is not patentable for the reasons stated by it in its decision.

The next claim to be considered is claim 19. This claim is very broad, and was held by the Board to be an unpatentable combination. As to this claim, the Examiner rejected it upon the references Rivas, Woods, and Wilkinson. We have carefully examined these references, and agree that patentability of this claim does not exist either as to any of the elements described therein or in their combination.

The remaining claims are termed by appellant “combination claims.” They are claims 11, 23, and 24.

Since' we find that claim 8 should be allowed, because of the element of the positioning of the pivot described therein, and as claim 11 incorporates claim 8 as a part of it, we think claim 11 should be allowed.

As to- claims 23.and 24, we do not consider that the element of positioning the pivot of the springs '(the element found patentable in the first group of claims) is stated therein, and we cannot say that a new and useful result has been produced by the combination of elements stated in said elements. Therefore we find no error in the rejection of claims 23 and 24.

The decision of the Board of Appeals is affirmed as to claims 15, 16, 19, 23, 24, 30, and 31, and is reversed as to claims 4, 5, 6, 7, 8,11,17,18, and 21.

Modified.


text:
    ETABLISSEMENTS RENE BEZIERS, SOCIETE ANONYME, v. REID, MURDOCH & CO.
    Patent Appeal No. 2711.
    Court of Customs and Patent Appeals.
    April 29, 1931.

      Moek & Blum, of New York City (Charles R. Allen, Hugo Mock, and Asher Blum, all of New York City, of counsel), for appellant.
    Fred Gerlach, of Chicago, Ill., for appellee.
    Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   LENROOT, Associate Judge.

This is an appeal from the decision of the Commissioner of Patents in a trade-mark interference proceeding in the United States Patent Office involving the mark “Yacht Club,” used upon canned fish.

The interference is between appellant’s application, filed on January 19, 1926, and appellee’s registered mark, No. 203531, registered on September 22, 1925, and also an application of appellee filed on June 3, 1926, for the registration of said mark applied to certain foods, other than canned fish.

Both parties took testimony.

The examiner of trade-mark interferences found that appellee was the prior user and owner of the mark; that appellant is not entitled to the registration for which it has made application; and that appellee is entitled to the registration for which it has made application.

Upon appeal, the Commissioner of Patents found that irrespective of the question of priority of use, as to which he found the evidence very inconclusive, both parties were guilty of laches, inasmuch as each party had been using the mark in the United States for over thirty-five years, without objection from the other party. Upon this ground he reversed the decision of the examiner of interferences and ordered that registration of the mark in issue be denied to each of the parties.

From this decision, appellant only has appealed; therefore, the question of whether appellee’s application should have been granted is not before us.

The issue before us is the registrability of appellant’s mark, in view of appellee’s registration of September, 1925, and appellee’s use of the mark so registered.

The burden was upon appellant to establish by a preponderance of evidence priority of ownership and use of said mark, its application having been filed subsequent to the date of appellee’s said registration.

It appears from the testimony on behalf of appellant that it and its predecessor had been engaged in packing sardines in France since 1872; that the trade-mark “Yacht Club” for sardines, etc., was registered in France in 1883 by one Janne, who very shortly thereafter assigned said mark to appellant’s predecessor; that, beginning in the year 1885, one Jose J. Price, a naturalized citizen of France, bought sardines from appellant under the brand “Yacht Club,” which he exported to the United States; that Meyer & Lange, a corporation dealing in imported fancy groceries, located in New York City, in the early nineties became an agent of appellant, and since said time has sold, in the United States, sardines packed by appellant under the mark “Yacht Club.” On November 6, 1888, one Frederic Reiset, of New York City, filed an application in the United States Patent Office for the registration of the mark “Yacht Club,” used upon sardines; the representation of the mark filed with the application contains, in addition to the words “Yacht Club,” the words “Rene Beziers,” which is the name of the founder of appellant company, and the word “Douarnenez,” the name of a town in France in which the factory of appellant’s predecessor was located, and in which appellant now has factories. The pictorial part of the representation so filed is almost identical with appellant’s present application, and the words are the same except as to their location in the representation filed. It further appears that the Commissioner of Patents granted the application of said Reiset, and the mark applied for was registered on June 25, 1889; that said Reiset died soon after said registration was secured. There was introduced in evidence a copy of an advertisement appearing in “The Retail Grocers’ Advocate” of May 14, 1887, wherein said Reiset advertised, among other things, “Young Mackerel In Oil, put up by R. Beziers, Douarnenez, France,” with a representation of a portion of a mackerel box, on one end of which appears the name “R. Beziers,” but not the words “Yacht Club,” and underneath said representation are the words “Frederie Reiset, 44 Beaver St., Sole Agent for the United States.”

There is no testimony concerning such alleged agency except that of Rene Beziers, whose deposition was taken in France, and the testimony of one Treppenhauer, president of the aforesaid corporation of Meyer & Lange.

This testimony was taken in 1928. The witness Beziers testified that he was 56 years of age and was a member of the board of directors of the appellant company; that said company was organized in 1922, succeeding to the business of his father, who died in that year; that the business was established by his said father in 1872; that he was employed in said business in 1893 after Ihe had completed his military education, and had since that time continued therein.

Upon the question of the agency of said Reiset, the witness testified as follows: “Yes, we had business dealings with Mr. Frederie Reiset of New York. He preceded Meyer & Lange as our agent. This was in about eighteen hundred and eighty-five or eighteen hundred and ninety, until we replaced him by Meyer & Lange.”

Upon being asked whether said Reiset was ever the owner of the “Yacht Club” trademark for canned sardines in the United States, the witness answered as follows: “I do not think he ever was. We bought this trade-mark from an export representative in Paris, Mr. Janne, towards the year eighteen hundred and eighty-three; it was he who introduced us to Mr. Frederic Reiset, as far as I remember. It was Mr. Janne who registered the ‘Yacht Club’ trade-mark in Paris and who sold it to us.”

He further testified:

“I suppose we did authorize Mr. Frederie Reiset to register this trade-mark.
“* * * y¡le obviously must have had knowledge of this registration of the trademark as he was our agent and we were the manufacturers.”

Upon cross-examination the witness repeated in substance the foregoing testimony, and further testified that in 1912 all the records and correspondence of appellant’s predecessor, more than ten years old, were destroyed.

The witness Treppenhauer testified that he was the president of the Meyer & Lange Company, and had been connected with said company since 1887; that in 1888 or 1889 Frederie Reiset & Company were the agents for “Beziers’ Yacht Club Boneless Sardines”; that said Reiset died and Meyer and Lange succeeded him in said agency “in the early nineties.”

Upon cross-examination the witness testified as follows:

“Q. You have never .been connected with the business of Frederie Reiset? A. No, sir.
“Q. And you had no direct knowledge of what he did; is that correct? A. We knew that he was an importer of sardines and to the best of my recollection and belief Meyer & Lange imported some of his sardines from F. Reiset & Co. in the early days.
“Q. But aside from them you had no connection with his business? A. No, sir.”

We do not think that the testimony of either of said witnesses is of any probative force as establishing that said Reiset was the agent of appellant’s predecessor. While it is true that the witness Beziers testified positively to such agency, it should be observed that he testified that in 1883 Reiset was introduced to appellant’s predecessor, and that in that year the witness was eleven years of age; that in 1885 he was thirteen years of age, and in 1890 he was eighteen years of age, each of said years being years that the witness covered by his testimony concerning agency of Reiset; and that he also testified that he did not enter the employ of his father until 1893, when he had completed his military education. Without impugning the good faith of the witness, it is obvious that he must have been testifying from hearsay and not from any personal recollection as to what had occurred previous to 1890.

For the reasons stated, we cannot give any weight to the testimony of said witness upon the question of the agency of said Reiset.

With regard to the testimony of the witness Treppenhauer, while he testified positively that in 1888 or 1889 Frederie Reiset & Company were the agents in the United States for “Beziers’ Yacht Club Boneless Sardines,” and that Meyer and Lange succeeded Reiset & Company in such agency, his cross-examination shows that he had no personal knowledge of the subject, and we therefore cannot consider said testimony as establishing, or tending to establish, such agency.

As there was nothing in said Reiset’s application for registration indicating agency, but on the contrary it was asserted in his application that he was the owner of the mark “Yacht Club” applied to sardines, we have left, as proof of agency, only the advertisement appearing in the exhibit of the May, 1887, issue of “The Retail Grocers’ Advocate,” wherein it is stated that Frederic Reiset is the sole agent for the United States of “Young Mackerel In Oil, put up by R. Beziers, Douarnenez, France.” In this advertisement there is no mention of the mark “Yacht Club.” As heretofore noted, there is testimony that, beginning in 1885, one Price bought “Yacht Club” sardines from appellant’s predecessor and exported them to the United States. There is no testimony as to whom in the United States they were exported, or of their sale in this country.

We do not think that upon the record before Us we would be justified in holding that Reiset acted as agent of appellant’s predecessor in procuring said registration, and that it was secured for the benefit'of said appellant’s predecessor.

In the case of McLean v. Fleming, 96 U. S. 245, 253, 24 L. Ed. 828, it was held that a proprietor, “if he owns or controls .the goods which he exposes to sale, is entitled to the exclusive use of any trade-mark adopted and applied by him to the goods, to distinguish them as being of a particular manufacture and quality, even though he is not the manufacturer, and the name of the real manufacturer is used as part of the device.”

The case of Lalanne v. Arnold & Co., 39 F.(2d) 269, 17 C. C. P. A. 925, relied upon by appellant, has no application to the case at bar. In that ease, there was a contract between Arnold & Company, the appellee, and its foreign principal, under which Arnold & Company was expressly granted the right to register in the United States any trade-mark used by said foreign principal, and it was held that the agent was the owner of the mark during the life of the contract.

For the reasons stated, said Reiset’s registration must, upon this record, be considered as for and on his behalf, and not on behalf of appellant’s predecessor. This being true, it was presumptively valid, and both ¡appellant and appellee herein were presumptively trespassers upon Reiset’s trade-mark rights so long as they existed, and neither appellant nor appellee was entitled to use or register said mark during such period unless there had been use of said mark by them, or either of them, prior to said Reiset’s registration.

The examiner of interferences found that the earliest date of use of said mark in the United States by appellants, established by the evidence, is 1893; that the earliest date of use of said mark by appellee, established by the evidence, is 1887. The Commissioner of Patents found that the evidence was too indefinite to establish use by appellee of said mark in 1887. With this conclusion we are inclined to agree, but the evidence does clearly establish such use by appellee in 1890', which is prior to the first use established by appellant. If the evidence had been such as to warrant the conclusion that Reiset’s registration inured to the benefit of appellant, we think appellant would have established priority of use; but our conclusion is that the earliest date to which appellant is entitled, as to use of said mark in the United States, is, upon the evidence, as found by the examiner, the year 1893; that appellee has established a use of said mark in 1890, and therefore the commissioner did not err in denying appellant’s application for registration.

Nothing in this opinion should be construed as intimating that appellant has not the right to use said mark in the United States, if any trade-marks secured by said Reiset no longer exist. We say this because, if the said Reiset registration was for and on his own behalf, and did not inure to the benefit of appellant, as we have held, then apparently appellee did not have the right to use the mark in 1890, nor did appellant in 1893, and as against each other neither could claim priority.

The commissioner denied the applications of both parties on the ground of laches. In view of the conclusion we have reached, as hereinbefore stated, it is unnecessary for us to consider this question, but we deem it proper to say that we find nothing in the record to establish knowledge on the part of appellant of the use by appellee of said mark; and while there is evidence tending to show that appellee had knowledge of and acquiesced in appellant’s use of the mark, that fact cannot be considered in determining the question of appellant’s right to registration.

In the ease of Heger Products Co. v. Polk Miller Products Corp., 47 F. (2d) 966, 969, 18 C. C. P. A.-, this court, speaking through Presiding Judge Graham, said: “ * * * Mere acquiescence in the use of one’s trade-mark by another, even though it may be for an extended period, will not, in itself, bar the person from asserting the right to such trade-mark at any time. * *

Appellant contends that since the decision of the commissioner was against appellee as well as against appellant, and no appeal was taken by appellee, it cannot here dispute either the findings of fact or the conclusions of law of the commissioner.

It is unnecessary for us to consider this question for the reason that the appeal of appellant is based upon the ground that the commissioner erred in denying its application for registration. It is our duty to determine whether such denial was correct, and we are not confined to a consideration pf the ground upon which the decision professes to proceed. McClung v. Silliman, 6 Wheat. 598, 5 L. Ed. 340.

If the appeal before us involved purely inter partes questions, it may be that appellant’s contention would be well founded. This it is unnecessary for us to decide because we have repeatedly held that, in proceedings under section 7 of the Trade-Mark Act of Feb. 20, 1905 (15 USCA § 87), the Patent Office tribunals are not confined to the determination of questions arising inter partes, but may dispose of any question relating to the proposed registration that might properly be considered in an ex parte case. California Cyanide Co. v. American Cyanamid Co., 40 F.(2d) 1003, 17 C. C. P. A. 1198; Bookman v. Oakland Chemical Co., 40 F. (2d) 1006, 17 C. C. P. A. 1213; Skookum Packers’ Ass’n v. Pacific Northwest Canning Co., 45 F.(2d) 915,18 C. C. P. A.-.

It is therefore our duty to determine, upon the record before us, whether the commissioner erred in rejecting appellant’s application, regardless of appellee’s failure to appeal from the decision also denying its application for registration.

Since the goods of the parties to which the respective marks are applied are of the same descriptive properties, and the marks so nearly resemble each other as to be likely to cause confusion or mistake in the mind of the public, and appellant has failed to establish priority of use, the decision of the commissioner must be, and is, affirmed.

Affirmed.


text:
    VAN CAMP SEA FOOD CO., Inc., v. WEST-GATE SEA PRODUCTS CO.
    Patent Appeal No. 2709.
    Court of Customs and Patent Appeals.
    April 29, 1931.
    Albert J. Fihe, of Chicago, Ill., for appellant.
    James M. Naylor, of San Francisco, Cal. (Chas. R. Allen, of Washington, D. C., and Win. S. Graham, of San Francisco, Cal., of counsel), for appellee.
    Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   HATFIELD, Associate Judge.

This is an appeal in a trade-mark opposition proceeding from the decision of the Commissioner of Patents affirming the decision of the Examiner of Interferences dismissing the opposition of appellant and holding that appellee was entitled to the registration of the trade-mark “Breast O’ Chicken” for use on canned fish.

In its application for registration filed December 13, 1926, appellee. alleged that it had used the trade-mark since November 4, 1926.

It appears from the record that appellant is the owner of trade-mark registration No. 97,192, issued to the White Star Canning Company, May 19, 1914, of the trade-mark ‘•Chicken of the Sea” for use on tuna fish; that appellant and its predecessor have used the registered trade-mark continuously on tuna fish throughout the United States and in foreign countries since prior to 1914; and that appellant has expended large sums of money in advertising its product and its trade-mark.

Several witnesses for appellant testified that, in their opinion, the use by appellee of its mark “Breast 0’ Chicken” would cause confusion in trade.

It further appears from the record that appellant filed suit against appellee in the United States District Court, Southern District California, Southern Division, in which it was alleged that the use by appellee of its trade-mark was an infringement of appellant’s registered trade-mark. This suit was dismissed by the District Court on motion by appellee. On appeal to the Circuit Court of Appeals, .Ninth Circuit, the decree of the District Court was affirmed. Van Camp Sea Food, Inc., v. Westgate Sea Products, 28 F. (2d) 957, 958.

In its decision, the Circuit Court of Appeals stated that both parties had caused their trade-marks to be registered. Thereupon, the court, among other things, said: “Were the word ‘chicken,’ common to the two trade-marks, a purely fanciful term, and made equally prominent in both, we might have a case of sufficient doubt to warrant a hearing of evidence. But, as registered, the two combinations are similar neither in appearance nor in sound, and if, as appellant contends, it be conceded that ‘chicken’ is the dominant word in its combination, it cannot be said to have such prominence in that of the defendant. Moreover, ‘chicken,’ as used by the plaintiff, is not a purely fanciful term, but is measurably descriptive. True, in its primary or most popular meaning, it designates the young of the domestic hen, and less commonly, the young of wild birds, but it is sometimes used to denote living things of the sea as well as of the land. Its application has been so extended apparently because in a figurative sense it has come to signify something young and tender.”

After some further discussion of the question of the deseriptiveness of the involved trade-marks, the court stated that its decision should not be understood as holding that appellant’s trade-mark registration was invalid. However, it is evident from its decision that the court was of opinion that both marks were descriptive. To what extent it was influenced in holding that the involved marks were not confusingly similar, by its views that they were descriptive, we do not know. But, hpwever that may be, if the involved marks are descriptive, the tribunals below erred in holding that appellee was entitled to have its mark registered.

Appellee concedes that appellant’s trademark is valid, and that question is, therefore, not before the court in this case.

The question of the descriptiveness or misdeseriptiveness of. appellee’s mark is involved in the issue of the right of registration. However, in view of the conclusion we have reached as to the confusing similarity of the marks, we find it -unnecessary to consider other issues.

Appellant has popularized its goods and its trade-mark. It has expended thousands of dollars in advertising them throughout the United States, and its trade-mark “Chicken of the Sea” is undoubtedly of very great value. Although its goods possessed the same descriptive properties, and were sold in the same market and in the same stores as the canned fish of appellant, appellee, in 1926, adopted and used the trade-mark “Breast 0’ Chicken” on canned fish.

It is true, as argued by counsel for appellee, that the involved trade-marks are not identical either in appearance or in sound. However, the mark of appellee includes, as its dominant feature, one of the dominant features of appellant’s mark — the word “Chicken” — and closely Simulates appellant’s trade-mark.

The law does not require that, in order that confusion, mistake, and deceit may be avoided, trade-marks used on such a common and widely used article of food as canned fish shall be carefully analyzed and dissected by the consuming public. Lever Brothers Co. v. Riodela Chemical Co. (now by Change of Name the Tex Co.), 41 F.(2d) 408, 17 C. C. P. A. 1272.

The general purpose of the law of trademarks is to prevent “one person from passing off his goods or his business as the goods or business of another.” California Packing Corporation v. Tillman & Bendel, 40 F. (2d) 108, 110, 17 C. C. P. A. 1048; B. F. Goodrich Co. v. Clive T. Hockmeyer et al., 40 F.(2d) 99,17 C. C. P. A. 1068, and cases cited.

Although there is nothing in the record to establish affirmatively that appellee designedly simulated appellant’s trade-mark, nevertheless, considering the similarity of the marks and other facts and circumstances of record, it would seem to be clear that the use by appellee of its trade-mark .concurrently with the use by appellant of its trademark would cause confusion in the mind of the public, and would result in appellee trading on appellant’s good will and popularity, with corresponding damage to both the public and appellant.

The decision is reversed.

Reversed.