Trade-Mark Act of 1946, which was cited in the Commissioner's decision, reading as follows:

In the construction of this Act, unless the contrary is plainly apparent from the context

Abandonment of mark.-A mark shall be deemed to be "abandoned”(a) When its use has been discontinued with intent not to resume.

Intent not

to resume may be inferred from circumstances. Non-use for two consecutive years shall be prima facie abandonment.

(b) When any course of conduct of the registrant, including acts of omission as well as commission, causes the mark to lose its significance as an indication of origin.

[2] The Assistant Commissioner further noted that Section 14 of the Act provides for the cancellation of a registration of any mark which has been so abandoned and therefore the registration of appellant should be canceled whether or not there was confusing similarity between the marks of the parties.

It was the opinion of the Assistant Commissioner that because of his holding with respect to abandonment it was not necessary to consider the question of confusing similarity. He stated that appellant by its conduct conceded the similarity of the marks and therefore any doubt would be resolved against it. It was his further opinion that the announcement of the resumption of the "CHARGE UP" mark of appellant was made by reason of the popularity of another soft drink on the market which, on the record here, must have referred to the product of appellee.

[3] With respect to the allegation of counsel for appellant that the petition for cancellation should be dismissed for the reason that appellee did not bring the proceeding before an earlier date, the Assistant Commissioner observed that even though an earlier action to cancel might have been appropriate, in view of the abandonment of appellant, as above referred to, the failure of appellee to bring such action because of the seemingly specific abandonment of the mark, could not adversely affect the right of appellee to the cancellation sought and no equitable principle of laches, acquiescence, or estoppel could be pursued against appellee by reason of appellant's conduct.

It is very clear to us that the reasoning of the Assistant Commissioner is without flaw. We cannot understand how proof of abandonment could have been more strongly admitted by appellant unless the word "abandon" had been used specifically.

241484-53-6

In view of our conclusion we do not think it necessary to determine whether the marks of the parties are confusingly similar.

It is contended in the brief of counsel for appellant that the discontinuance of the mark "CHARGE UP" was temporary and was on the orders of a single individual without the consent of the Board of Directors of the corporation and by reason of the personal promise given to the president of appellee. Counsel therefore urge that such action of the president of a corporation cannot be considered the act of the corporation and the appellant company should not be bound thereby. We cannot agree with that contention. The facts are that the mark "CHARGE UP" was used on appellant's product for the period of only a few months. It was then discontinued and not used again until approximately five years subsequent to the death of appellant's president. It seems clear to us that the long use of the mark "CHARGE-ER" or "CHARGER" which was substituted for the mark "CHARGE UP” surely must have been known to the officers of the corporation and there is nothing in this record to indicate that the president of appellant was not acting within the scope of his authority when he agreed that the mark "CHARGE UP” was confusingly similar to the marks of appellee.

In our opinion, the record shows that appellant definitely abandoned the use of the mark "CHARGE UP" and therefore the case of Korona Spice Corp. v. Kuczor, 77 USPQ 172 is not in point. Nor can we hold that the record here indicates a mere non-use of a trademark for a limited period and, therefore, the case of H. H. Meyer Packing Co. v. The E. Kahn's Sons Co., 1 U. S. Pat. Q. 229 cited by counsel for appellant is not applicable. Neither is the case of The Rosemaid v. Rose Bros. Co. v. Sam Rosenberg & Co., 2 U. S. Pat. Q. 125 of avail in support of the contention of counsel for appellant.

In view of what has hereinbefore been set out, the decision of the Commissioner is affirmed.

659 O. G. 5; 39 CCPA 748; 193 F. (2d) 198; 92 USPQ 126

PATENTS

SMITH V. HAYWARD (No. 5619)

1. DEFENSES-NATURE OF PATENT RIGHTS

Every patent application is affected with public interest; charge of fraud for perjury in respect to granting thereof is matter of grave concern to Patent Office and to every court of competent jurisdiction.

2. APPEALS TO COURT-IN GENERAL-REHEARING AND REOPENING TIME FOR REHEARING

It is doubtful whether interference party timely (FRCP 60 (b)) brought petition in nature of bill of review following decision of Court of Customs and

Patent Appeals affirming award of priority to opponent, but issue of opponent's fraud upon court is given full consideration and is not decided on purely jurisdictional grounds, bearing in mind that court may vacate judgment and remand for further proceedings where events subsequent to appeal effect correctness of judgment.

3. APPEALS TO COURT-IN GENERAL-INTERFERENCE-EVIDENCE-IN GENERAL Learned v. Thompson, 91 USPQ 57, held that party may not be relieved by Court of Customs and Patent Appeals of his inadvertence or neglect where by due diligence he could have adduced controverted evidence in interference. United States Court of Customs and Patent Appeals, December 18, 1951

ON PETITION in the nature of a bill of review of the final judgment in the case of Smith v. Hayward, 37 C. C. P. A. (Patents) 718

[Petition denied].

Edward A. Haight for appellant.

James P. Burns for appellee.

[Oral argument November 9, 1951, by Mr. Haight and Mr. Burns]

Before GARRETT, Chief Judge, and JACKSON, O'CONNELL, JOHNSON, and WORLEY, Associate Judges

O'CONNELL, Judge, delivered the opinion of the court:

This proceeding relates to a petition by the party Smith, appellant. In effect, the petition involves a bill of review in equity1 of a final judgment previously rendered by this court on an appeal taken from the decision of the Board of Interference Examiners of the United States Patent Office in an interference proceeding, the petitioner alleging here that the party Hayward, appellee, perpetrated a fraud upon the court in that case: Smith v. Hayward, 37 C. C. P. A. (Patents) 718, 176 F. (2d) 914, 83 USPQ 123.

The opinion in the case sets forth in detail the issue and basis for our conclusion on the question of priority. Reference is made thereto for a complete background of this proceeding. It may be noted also that a great deal of the subject matter of petitioner's papers and brief here is devoted to a discussion of the evidence and issues involved in the court's original decision.

The decision of the court was filed June 28, 1949; and pursuant thereto the mandate of the court was issued October 13, 1949, the claims of Hayward's involved application were allowed October 27, 1949, and the patent, No. 2,489,180, was granted to Hayward November 22, 1949. Those reported dates raise a serious doubt as to whether

1 Louis P. Josserand v. Samuel Herbert Taylor, Jr., 34 C. C. P. A. (Patents) 824, 159 F. (2d) 249, 72 USPQ 357; Raymond et al. v. Wickersham, 29 C. C. P. A. (Patents) 1166, 129 F. (2d) 522, 54 USPQ 244.

the party Smith has brought his petition within the period of time prescribed by Rule 60 (b) of the Federal Rules of Civil Procedure.

[1] Every application for a patent is affected with the public interest, however, and a charge of fraud for perjury in respect to the granting thereof is a matter of grave concern not only to the tribunals of the Patent Office but also to every court of competent jurisdiction.* [2] The issue raised by the petition here has been given full consideration therefore and will not be decided on purely jurisdictional grounds, bearing in mind that where events subsequent to an appeal may effect the correctness of our judgment, the court in a proper case may vacate the judgment and remand the cause for further proceedings as requested by the petitioner.*

The essence of the counts of the involved interference related to a new method of continuously detecting the presence of combustible gas occluded in the circulating mud at the top of an oil or gas well during the drilling operation of the well by the rotary method. The petitioner properly states in his brief that: "A reduction to practice off such a method requires that it be established that the method will show gas where it exists, and will not show gas where it does not exist." Moreover, both inventors in their respective specifications point out that the invention of the counts defines a method of continuously detecting the presence of gas and the quantities thereof, "even the most minute quantities of gas," for the purpose of promptly warning the drilling operator so as to prevent the incipient blowout of the well with disastrous results.

Two such drilling operations at wells have been respectively identified throughout the litigation as the Barrow No. 1 Well and the Keeran No. 1 Well, and Smith in his petition alleged that the Patent Office and the court's findings in the interference were based on testimony that those wells "were successfully completed and produced gas from the stratum shown to contain gas by Hayward's use of the method."

Smith, with reference to his petition, states in his brief that: Exhibit 1 attached to Smith's Petition is the official report filed by Hayward's employer, the Barnsdall Oil Company, with the Department of Conservation of the State of Louisiana with respect to the Barrow No. 1 Well. The form has

That rule, inter alia, provides that: "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect ; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59 (b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.” Precision Co. v. Automotive Co., 324 U. S. 806

4 Walling v. Reuter Co., 321 U. S. 671.

a space for reporting "Oil and Gas Zones". This is answered by Hayward's employer: "None". The final notation on the first page of this official report states "ABANDONED AS DRY HOLE: NO GAS OR OIL SHOWS". Thus the Barrow No. 1 Well contained no gas show for Hayward to detect. All that he could have determined was what the affidavits in support of his opposition (Exhibit D of Memorandum in Opposition) characterized as "inconsequential characteristics".

Smith's position is that Hayward deliberately withheld from Smith, the Board, and this Court the essential information that his employer had abandoned the Barrow No. 1 Well and had reported to the State of Louisiana "No gas or oil shows".

The form or questionnaire filled out by the Barnsdall Oil Company for the records of the State of Louisiana did not contain the impressive emphasis that the petitioner has employed in the quotation hereinbefore set forth. That emphasis, together with other similar matters therein set forth in the petitioner's original petition, caused this court to hear the petition here involved.

Reliable evidence contained in the affidavits of experienced petroleum engineers submitted by Hayward in reply to Smith's allegations, however, uniformally state that abandonment reports "as a general practice, do not carry indications of non-commercial gas shows" and that in the State of Louisiana, particularly, where the Barrow No. 1 Well was drilled, "small gas shows are encountered and the inconsequential characteristics of such shows dictate the abandonment of the well" as a dry hole.

The petitioner Smith has proceeded here on the expressed assumption that "One does not operate a well without producing something from it. The drilling of a worthless hole in the ground and abandoning it, is not the operation of a well." Hayward proceeds on the unexpressed assumption that the last quoted statement is axiomatic. Hayward contends, however, that whether a well, during the drilling of which the method of the counts was practiced, ultimately turned out to be a producing well or an abandoned dry hole is absolutely of no importance.

Hayward in support of his position points out here, that quite apart from the completely irrelevant information filed with the State of Louisiana by Hayward's employer, the Barnsdall Oil Company, collateral evidence in the original case to the very same effect on the point in question as the evidence now placed before the court was made fully available to Smith during the prosecution of the interference proceeding and was further available as to its credibility by cross-examination. [3] In the situation just described, our court has recently held that where counsel by due diligence could have adduced the controverted evidence in the interference proceeding, a