It is insisted by appellant that as the issues were made in the above case the testimony upon the question of abandonment was not as full as it would otherwise have been and that in the present case it has been amplified. It does not clearly appear what additional testimony upon this point has been adduced in the present record. (Comptograph Co. v. Burroughs Co., 183 Fed. Rep., 321.) It is clear, however, that there were sufficient facts before the court upon which to base its finding, and its decision, therefore, is at least persuasive upon the issue here. (Brill v. Washington R. and Electric Co., C. D., 1908, 377; 134 O. G., 1563; 30 App. D. C., 255; Mast, Foos & Co. v. Stover Mfg. Co., C. D., 1900, 285; 91 O. G., 1239; 177 U. S., 485.)

Upon an examination of the present record, we see no escape from the conclusion that this alleged invention was abandoned. It concededly belonged to the Felt & Tarrant corporation. That corporation was dominated by Mr. Tarrant. His attitude concededly was the attitude of the corporation. After the failure of Mr. Felt to interest the Census Office officials in the device, Mr. Tarrant peremptorily directed that nothing more be done with it; that thereafter all time and money the company had must be devoted entirely to the machines then on the market. And whenever, thereafter, Mr. Felt

wanted to talk about the wide paper machine to him he treated the subject with contempt.

If this was not "a wilful or negligent postponement" of this alleged invention, within the doctrine of Kendall v. Windsor, (21 How., 322;) Consolidated Fruit-Jar Co. v. Wright, (94 U. S., 92,) and other authorities upon this question, it would be difficult to suppose a set of facts constituting such postponement. While the object of the patent laws is through protection to stimulate inventions, of course the fundamental idea is the benefit to be conferred upon the public. This object is too frequently overlooked by inventors. We have said that they may not withhold their improvements from the public until they may manufacture free from the claims of rival inventors, (Hawkins v. Ward, C. D., 1912, 453; 177 O. G., 242; 38 App. D. C., 90,) for such a practice would unduly prolong the monopoly. The law permits but does not compel an inventor to apply for a patent.

It is the unquestionable right of every inventor to confer gratuitously the benefits of his ingenuity upon the public, and this he may do either by express declaration or by conduct equally significant with language, such, for instance, as an acquiescence with full knowledge in the use of his invention by others; or he may forfeit his rights as an inventor by a wilful or negligent postponement of his claims. (Kendall v. Windsor, 21 How., 329.)

Here the invention was complete in 1890. It was deliberately cast aside by its owner, the Felt & Tarrant corporation. This policy remained unchanged for a period of eight years and, meanwhile, other parties had entered the field and exploited the idea exemplified in this device. More than a year elapsed after the issuance of the Hiett patent before the present application was filed. In other words, it is perfectly apparent that the policy of the Felt & Tarrant Co. respecting this alleged invention did not change until the idea had been exploited by others sufficiently to convince the company that it had made a mistake. It was then, and not until then, that the company determined to appropriate to itself the entire field for the manufacture of wide-carriage comptographs. This it could not do. Once having abandoned the alleged invention, it could no more resurrect it than any other dead thing. Thereafter, the Felt & Tarrant corporation could assert no right in this invention. (Pennock v. Dialogue, 2 Pet., 1.)

Mr. Felt, individually, may have believed in this alleged invention and, individually, may have entertained no idea of abandoning it, but his personal views on the subject were subordinated to the views of the dominating member of the corporation, Mr. Tarrant, who determined the policy of that corporation. Had Mr. Felt, when he found that his corporation would do nothing with his invention, applied for a patent for his individual benefit, a different case would have been presented, for courts are always desirous of lending a helping hand to a worthy inventor who has been the victim of adverse circumstances. (McBerty v. Cook, C. D., 1900, 248; 90 O. G., 2295; 16 App. D. C., 133.) But here the corporation that had in terms abandoned the invention was the party that attempted to resurrect it. We must therefore hold that this patent is void.

We will now examine Patent No. 568,021. This patent having been issued September 22, 1896, on an application filed June 14, 1895, expired September 22, 1913. Claims 47, 48, 49, and 52 are here involved. These claims relate to so-called delayed transfer or carrying mechanism. An adding-counter contains several addingwheels for units, dimes, dollars, etc., bearing on their peripheries numbers from 0 to 9. When the unit-wheel has moved through nine spaces the addition of one unit brings the numeral 0 to the readingline and it then becomes necessary to transfer or carry one unit to the dimes-wheel that the counter may show 10 instead of 0. The same is true of the dime and dollar wheels. It is this actuation of the wheel of the next higher order, upon the movement of the wheel of the lower order, that is known as the transfer or carrying operation. Claim 47 reads as follows:

47. The combination with the carrying levers and their latches of devices for moving the levers into position for carrying such devices being also retracted partially immediately after thus moving the levers released from the latches to escape reëgagement therewith, substantially as specified.

It is contended by appellee that this claim is met in the prior patents to Wythe, No. 445,582, February 3, 1891, and Hopkins, No. 517,383, March 27, 1894, the filing date of the latter patent being October 4, 1892. An examination of claim 47 discloses three essential elements: first, a lever adapted to move the numeral-wheel in a carrying operation; second, a detent to prevent the operation of such lever and which in turn is controlled by the position of the numeralwheel of the next lower order, and, third, means to restrain the carrying-lever from performing its function after it has been tripped by the withdrawal of the detent until the primary actuators have ceased their movements.

Turning to the Hopkins patent, the carrying-levers are clearly shown in Figure 51 at 354. Their latches are shown at 360. In Fig. 53 the carrying-lever is shown in its raised position and locked by the latch 360, which engages pin 361 attached to the lever. The lever was moved to a locked position by the arm 391. There is a partial retraction of this arm after moving the lever as called for by the claims. While the claim ends here, the arm 301, as shown in Fig. 2, has moved to the third position, leaving the carrying-lever 354 to engage the numeral-arm, thus effecting the carrying operation.

Claim 48 differs from claim 47 only in requiring

a cam device for controlling the movement of said devices for moving the levers. This cam device is found in Fig. 24 of the Hopkins patent at 378. When this plate is moved it exerts a cam action upon the pin 392a, thereby moving the arm 392 and the shaft 390. Claim 49 refers to the "rock-shaft N and its pins." While this rock-shaft and pin are not found in the appellee's structure, they are present in that of Hopkins, the lock-shaft being there found in Fig. 24 at 390, the pin or arm 391 being mounted upon the shaft. Claim 52 includes an additional element of a “hand device or lever whereby said shaft is rocked." This, too, we fail to find in appellee's structure, but we do find it in both the Hopkins and Wythe structures.

We are clearly of the opinion that these claims were anticipated by the Hopkins patent. It is unnecessary, therefore, to consider the other references.

We now consider Patent No. 661,121, which is the narrowest of all and relates to the type-hammers of the printing mechanism of the machine. The supposed novelty of the claims resides in making the hammers which cooperate with the type-segments of the printing mechanism in two parts, hinged together by a pivot, then applying the actuating power to the wheel member and putting a stop in the

path of movement of such member, so as to arrest it before the striking part reaches the paper. The claims are four in number, 37, 38, 39, and 40; 37 and 40 read as follows:

37. The calculating machine, having type and hammers for pressing the paper against the type, said hammers having hinged heads, made separate from the bodies, actuating springs attached to the heads, and means for arresting the heads before the hammers can make the impressions, substantially as specified.

40. In a machine for printing numbers, a printing hammer made in two parts, and hinged together, one part receiving the actuating power and imparting it to the other, and being itself arrested before the making of the impression, substantially as specified.

Counts 38 and 39 do not differ materially from count 37.

In Mr. Felt's specification he directs attention to his prior patents and to the fact that his hammers differ from those previously shown in that each is made with a head separate from the rest or main body of the hammer.

My object

says his specification—

in this feature is to soften the blow against the type and allow the hammer to drop back a little from the paper immediately after striking, the head being actuated by the spring H14b and being hinged to the same shaft A14 which supports the body portion of the hammers and, being also adapted to bear upon the body at H14c, and thus to give the body the impulse of motion necessary to carry it against the type, but being itself arrested by a stop-rod H14d, extending transversely of the series of hammers, before the hammer reaches the paper.

In one of Mr. Felt's prior patents, No. 441,233, dated November 25, 1890, he shows a device intended to perform the same function as that performed by the device now in issue. In the specification of the prior patent he says:

Each spring 44 is connected with its appropriate hammer by a piece of straight wire 46 that is passed between the depending teeth of a toothed guide-bar 47, and in each straight piece of wire is provided a knot 48 or other suitable stop to engage the toothed guide-bar 47 and relieve the hammer from the tension of the spring 44 just before the hammer reaches the end of its stroke thereby allowing the hammer to yield slightly after delivering its blow, and thus prevent it from obstructing the subsequent movements of the type-head and ribbon. In their brief counsel for appellee admit that this device— relieved the printing pressure on the hammer as soon as the hammer blow was struck.

but contend that

it did not insure the hammer dropping back positively enough, as soon as its blow was delivered, to fully relieve all pressure upon the paper that had been printed upon.

Counsel therefore suggest that the structure now in issue was conceived "to accomplish this more definite action." In other words,

counsel take the position that, notwithstanding the enjoyment by Mr. Felt of a monopoly of this feature for the statutory period, he is nevertheless now entitled broadly to monopolize the same feature during the life of his present patent. This clearly he may not do. Unless, therefore, these claims are to be limited to the structural characteristics of the device of the issue-in other words, to the specific form of the means employed-they must fall. Since appellee's device differs from appellant's as much as appellant's differs from his prior device, we conclude that there has been no infringement of these claims.

The decree will there be affirmed, with costs.

Affirmed.

[Court of Appeals of the District of Columbia.]

STAMATOPOULOS v. STEPHANO BROS.

Decided March 2, 1914.

200 O. G., 1394; 41 App. D. C., 590.

TRADE-MARKS-CANCELATION-SECTION 13 OF THE ACT OF 1905-APPLIES TO REGISTRATIONS UNDER THE ACT OF 1881.

Section 13 of the act of 1905 providing for the cancelation of trademark registrations applies also to registrations made under the act of 1881.

Mr. E. S Duvall for the appellant.

Mr. H. M. Wise for the appellee.

VAN ORSDEL, J.:

This action was brought in the Patent Office by appellant for the cancelation of the registration of the trade-mark "Rameses" for cigarettes, granted to appellee August 8, 1899, and September 5, 1905, respectively. The first registration was granted under the act of 1881. It was held by the Commissioner of Patents that, as to that registration, the Office lacked jurisdiction to cancel it. From this ruling the case was brought here on appeal.

The right of any person deeming himself injured by the registration of a trade-mark to challenge it by a proceeding for its cancelation, is provided for in section 13 of the act of Congress of February 20, 1905, (33 Stats. L., 724) and it was under this act that this proceeding was brought. The decision of the Commissioner of Patents is to the effect that the provision of the statute relating to cancelation is prospective, and not retrospective, and, therefore, cannot be applied to trade-marks registered prior to the date of its enactment. This is the sole question involved in this case.

72367°-15-11