There seems to be no real foundation for this petition. At best it is based upon the merest technicality. The petition is denied. KELLY V. DEMPSTER. Decided March 6, 1911. 164 O. G., 975. INTERFERENCE-PRIOR INTERFERENCE INVOLVING ASSIGNEE OF ONE OF THE PARTIES-MOTION TO DISSOLVE-TRANSMISSION. Where an interference was declared between the application of the winning party to a prior interference and an application owned by the assignee of the losing party thereto, Held that a motion to dissolve on grounds which were or might have been raised in the prior interference was properly refused transmission. APPEAL ON MOTION. VAPOR ELECTRIC APPARATUS. Mr. Charles A. Terry and Mr. George H. Stockbridge for Kelly. Mr. A. G. Davis for Dempster. (Mr. Alexander D. Lunt and Mr. Charles McClair of counsel.) MOORE, Commissioner: This is an appeal by Kelly from a decision of the Examiner of Interferences refusing to transmit a motion to dissolve the interference. This decision is based on the ground that all the grounds of the present motion either were or could have been urged in the motion to dissolve made in a prior interference involving the application of Dempster involved herein and the patent to Von Recklinghausen, No. 794,745, which is owned by the assignee of the Kelly application. This holding was based upon the ruling in the cases of Townsend v. Ehret et al. (C. D., 1908, 263; 137 O. G., 1485) and Townsend v. Thullen et al. (C. D., 1908, 269; 137 O. G., 1710). Dempster was involved in an interference with Bastian and Salisbury, which was decided in favor of the latter. The present application of Dempster is a division of the application involved in that interference and was itself involved in an interference with the patent of Von Recklinghausen. This latter interference was finally decided in favor of Dempster. The claims constituting the issue of this interference were placed in Kelly's application prior to the decision of the Court of Appeals in Von Recklinghausen v. Dempster (C. D., 1910, 365; 154 O. G., 252; 34 App. D. C., 474). They were rejected by the Primary Examiner, and after the decision of the court the attention of the Examiner was called to the fact that the claims presented were the claims of a patent granted upon an application copending with the application of Kelly, and the present interference was declared. It is contended on behalf of Kelly that the decisions above cited are not applicable to this case for the reason that a patent has recently been granted upon the Bastian and Salisbury application and that such patent was not available as reference at the time the motion to dissolve the interference Von Recklinghausen v. Dempster was brought. As fully pointed out by the Examiner of Interferences, however, this contention is not well founded. The issue of the interference between Dempster and Bastian and Salisbury was part of the prior art so far as Dempster was concerned and was so treated in considering the Von Recklinghausen-Dempster interference. For this reason it is believed that the refusal to transmit the motion to dissolve was clearly right. Furthermore, it is evident from the record of this interference that there are no equities on behalf of Kelly which would justify a departure from the practice announced in the decision above cited. The application of Kelly was copending with the application of Von Recklinghausen; but claims corresponding to the Von Recklinghausen-Dempster interference were not made in the application at a time when it could have been included in that interference, and no preliminary statement has been filed by Kelly in this interference. A motion to dissolve on the ground of non-patentability is not a matter of right, and the moving party appears in such a motion merely as amicus curia. In the case of Gold v. Gold (C. D., 1910, 269; 150 O. G., 570; 34 App. D. C., 229) the Court of Appeals with respect to such motion said: This allowance is not appealable. It is true that the patentability of the claims of an issue in interference may be questioned in a motion to dissolve. (Patent Office Rule 122). Why this is permitted by the rule we do not understand, unless it be to enable the Commissioner to reëxamine the question in the light of argument and put an end to useless litigation if he find that an allowance of patentability ought not to have been made in the first instance. So finding he acts for the protection of the public from an unauthorized monopoly and dissolves the interference so that each application may be rejected. The assignee of the Kelly application having had one opportunity to present all the grounds upon which the present motion is based, it was properly refused transmission The decision of the Examiner of Interferences is affirmed. WOODBRIDGE v. CONRAD. Decided March 14, 1911. 165 O. G., 241. INTERFERENCE-MOTION FOR DISSOLUTION-RECOMMENDATION BY EXAMINERS-IN CHIEF-PRACTICE. On appeal the Examiners-in-Chief affirmed the decision of the Primary Examiner granting a motion to dissolve on the ground that C. had no right to make the claims corresponding to the counts of the issue and annexed to their decision a recommendation that W. had no right to make them. C. took no appeal, and W. appealed from the decision in so far as it contained a recommendation that W's claim be rejected. Held that the decision dissolving the interference on the ground that C. had no right to make the claims having become final further consideration of W's right to make these claims must be had in the ex parte prosecution of his application. ON APPEAL. ON PETITION. SYSTEM OF ELECTRICAL DISTRIBUTION. Mr. A. B. Stoughton for Woodbridge. Mr. Wesley G. Carr for Conrad. MOORE, Commissioner: Woodbridge has filed an appeal from the decision of the Examiners-in-Chief so far as in and by that decision a recommendation is made that the counts of the issue be finally rejected on the ground that Woodbridge * * has no right to make them, and a petition that this appeal act as a supersedeas and that all further proceedings be stayed until it be heard and determined. The interference was declared with two counts. Woodbridge and Conrad each filed a motion to dissolve, and Conrad filed a motion to amend under the provisions of Rule 109. The Examiner denied Conrad's motion to dissolve and his motion to amend and granted Woodbridge's motion to dissolve on the ground that Conrad had no right to make the claims and that the counts had different meanings. On appeal by Conrad the Examiners-in-Chief affirmed the decision of the Primary Examiner on Conrad's motion to dissolve and his decision denying Conrad's motion to amend. They also annexed to their decision a recommendation that Woodbridge has no right to make the claims corresponding to the issue of the interference. The limit of appeal from this decision has expired, and Conrad has taken no appeal. Woodbridge has filed the appeal above referred to. As Conrad has taken no appeal from the decision of the Examinersin-Chief holding that he has no right to make the claims corresponding to the issue, this decision has become final, and the interference therefore stands dissolved. The question of Woodbridge's right to make the claims is an ex parte one to be considered by the Primary Examiner in the further prosecution of his application. (Holz v. Hewitt, C. D., 1907, 98; 127 O. G., 1992.) Woodbridge's appeal and petition are therefore dismissed. CRAVER'S SONS v. CONKLIN & SON. Decided March 17, 1911. 165 O. G., 241. TRADE-MARKS-SIMILARITY—“AI” AND “AA”. The marks "AI" and "AA" Held so similar that their concurrent use upon goods of the same descriptive properties would be likely to cause confusion in the minds of purchasers. APPEAL ON MOTION. TRADE-MARK FOR GRASS-SEED. Mr. H. N. Low for Craver's Sons. Messrs. Munn & Co. for Conklin & Son. MOORE, Commissioner: This is an appeal by Craver's Sons from a decision of the Examiner of Trade-Marks denying a motion to dissolve the interference. The motion was brought upon the ground that the marks are not so similar as to justify an interference. The mark of E. W. Conklin & Son consists of the symbol "AI," and that of Craver's Sons consists of the letters "AA," associated with applicant's name and the words "Re-cleaned Timothy." The marks are applied to grass-seed, and timothy-seed, respectively. George Craver's Sons are registrants, and E. W. Conklin & Son are applicants for registration. I am clearly of the opinion that "AI" and "AA" are so alike that their concurrent use upon goods of the same descriptive properties would be likely to cause confusion in the minds of purchasers. This is the only question raised by the present appeal. The decision of the Examiner of Trade-Marks refusing to dissolve the interference is right and is affirmed. The word "Copyright" Held properly refused registration as a trademark, since its use in connection with the words "Registered in the United States Patent Office" or their equivalent would be likely to convey to the mind of the purchasing public the impression that the merchandise upon which the mark is used had received the official approval of the United States Government. ON APPEAL. TRADE-MARK FOR WHEAT-FLOUR. Messrs. Taylor & Hulse and Messrs. Steuart & Steuart for the applicant. TENNANT, Assistant Commissioner: This is an appeal from the decision of the Examiner of TradeMarks refusing to register the word "Copyright" as a trade-mark for flour. Although this alleged trade-mark was presented for registration under the ten-year proviso of the act of February 20, 1905, the Examiner has refused registration upon the ground that the word Copyright " is not a word to which the applicant can claim exclusive right. 66 He has pointed out that the Copyright Acts of June 18, 1874, and of March 4, 1909, under which prints and labels are copyrighted in the United States Patent Office, require that notice of copyright of a print or label shall be given by the use of the word "Copyright " and name of the owner and date of copyright. He therefore held that this alleged mark is not entitled to registration in view of the principle announced in the decision of the Court of Appeals of the District of Columbia in re Cahn, Belt & Company, (C. D., 1906, 627; 122 O. G., 354; 27 App. D. C., 173,) in which the Court said: The applicants' mark would not be a mark within the meaning of this last proviso to section 5, because it was not in actual and exclusive use as a trademark for ten years next preceding the passage of this act. The application in this case admits that the mark we are now considering is a simulation of the arms or seal of the State of Maryland, with variations it is true, but still a simulation of the coat-of-arms of Maryland. The coat-ofarms of Maryland was never in the exclusive use of the applicants during any period, nor could the applicants ever acquire an exclusive use as a trade-mark of the State coat-of-arms. In the sense of this proviso, the applicants had the actual but never had the exclusive use of this simulation of the Maryland coatof-arms, and for this reason the appellants' trade-mark sought to be registered |