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It is further noted that Ryder desires to allege a date of reduction to practice prior to the date of reduction to practice alleged by White, although that alleged in the preliminary statement in this interference, as well as that alleged in interference No. 29,988, which was based on a broader issue, was subsequent to the date alleged by White. It is well settled that where a party has had access to the preliminary statement of his opponent he will not be permitted to amend his statement to change the date of conception or of reduction to practice from a date subsequent to that alleged by his opponent to one prior to such date unless most satisfactory reasons are given in explanation of the facts necessitating such amendment and of the delay in bringing a motion to amend.

In the present case the only reason given for alleging an earlier date is that Ryder could not obtain the facts at the time his original preliminary statement was made and that it was not until he had had an opportunity to talk with the machinist McCormick, who assisted him in the construction of the work, that he was enabled to definitely fix the date of reduction to practice beyond that sought to be alleged. There appears to be no reason why Ryder could not have seen McCormick prior to the time he prepared his preliminary statement, nor is there any showing to excuse the long delay in obtaining knowledge of these alleged facts. Under these circumstances he is clearly not entitled to file such an amended preliminary statement.

The decision of the Examiner of Interferences is affirmed.

EX PARTE RIDDLE.

Decided July 10, 1909.

145 0. G., 1021.

PRACTICE-INTERFERENCE BETWEEN APPLICANT AND PATENTEE-CLAIMS UNDER

REJECTION. Where an applicant makes claims identical with those of a patent and the Examiner holds that when construed broadly enough to read upon the applicant's device the claims are unpa tentable, Held that this is in effect a holding that the applicant has no right to make the claims, and a request for interference was properly denied until the question of patentability of the claims to him had been settled.

ON PETITION.

CASH-REGISTER.

Mr. J. B. Hayward, Mr. R. C. Glass, and Mr. W. H. Muzzy for the applicant.

MOORE, Commissioner:

This is a petition that the Examiner be directed to waive for the present the rejection of claims 18 and 19 and to declare forthwith an interference between this application and the patent to Dement and Hull, No. 813,360, granted February 20, 1906, claims 18 and 19 being identical with claims 2 and 16 of said patent.

The record shows that the Examiner has finally rejected these claims upon the ground that when construed broadly enough to read upon the applicant's device they are not patentable over the prior art cited. It is urged in behalf of the applicant that the patentability of these claims has been settled by reason of their allowance to the patentees, Dement and Hull, and that therefore the applicant should be permitted to contest the question of priority of invention with Dement and Hull before final action upon the patentability of these claims is made in this application. This contention is not believed to be well founded. The rejection of the Examiner is in effect a holding that the applicant has no right to make the claims, and it is well settled that an interference will not be declared except between patentable claims covering the same invention. The action of the Examiner is in accordance with the well-settled practice of the Office as set forth in the decisions in ex parte Dukes (C. D., 1905, 100; 115 0. G., 803) and in re Neill, (C. D., 1898, 332; 82 O. G., 749; 11 App. D. C., 582.)

While, as stated by the applicant, the Court of Appeals of the District of Columbia said in re Orcutt (post, 334; 141 O. G., 567) thatin view of the inadvertence of the Patent Office in granting a patent to McDonald and McDonald for the claims of the issue, which patent is now beyond the control of the Office, it would probably have been the more equitable practice to have assumed patentability in the interference proceeding for the purpose of determining the question of priority between the two parties thereto. However, It was within the scope of the Commissioner's authority to dissolve the interference, if convinced that the issue was not patentable the facts differed from those in the present case. In that case no question was raised as to the identity of the inventions claimed by the interferants or of the meaning of the claims when read upon Orcutt's structure. Where, however, as in the present case, there appears to be a doubt whether the claims would bear the broad construction attempted to be placed upon them by the applicant, the question of patentability of the claims to him should be determined before the interference is declared. The claims referred to in this petition at the present time stand finally rejected, and proper action is appeal to the Examiners-in-Chief.

The petition is denied.

EX PARTE SHEFFIELD MILL & ELEVATOR COMPANY.

Decided July 19, 1909.

145 0. G., 1021.

TRADE-MARKS-ALLEGED GENERIC TERM.

The fact that manufacturers and dealers may regard the word “ Diamond” as having lost its distinctive character when used in trade marks for four constitutes no ground for registering the trade-mark “Big Diamond” when it so nearly resembles several registered marks as to be

likely to cause confusion and mistake in the mind of the purchasing public. ON APPEAL.

TRADE-MARK FOR FLOUR.

Mr. George A. Byrne and Mr. Hervey S. Knight for the applicants, MOORE, Commissioner:

This is an appeal from the decision of the Examiner of TradeMarks refusing to register the words “Big Diamond” as a trademark for flour.

Registration was refused on the ground that the mark would be liable to cause confusion in the trade and to deceive purchasers in view of its close resemblance to the following prior registrations: F. A. Johnston, July 7, 1885, 12,382; Lyon & Co., September 22, 1885, 12,592; Wilcox & Hyde, March 22, 1887, 14,183; Minneapolis Flour Manufacturing Company, May 20, 1890, 17,939; North Dakota Milling Company, January 10, 1893, 22,319. The mark registered to Johnston consists of the word-symbol.“ Diamond Jo” and its equivalent, the figure of a diamond and the word “Jo.” The mark registered by Lyon & Co. consists of the words “ Diamond Mills." The registered mark of Wilcox & Hyde consists of the words “Diamond Crown” and the representation of a crown mounted upon a diamondshaped background. The mark registered to the North Dakota Milling Company consists of the word “ Diamond” upon the figure of a diamond, under which appears, the representation of stalks of wheat. The mark registered to the Minneapolis Flour Manufacturing Company consists of the words “ Diamond Medal” and a diamond-shaped figure within a circle composed of dots or diamond-shaped figures. All of these registrations are for flour.

In the ease of ex parte Snyder, (C. D., 1905, 133; 115 0. G., 1849,) in which the words “ Diamond Dust ” were refused registration as a trade-mark for flour in view of the registered marks of Lyon & Co. and the North Dakota Milling Company, supra, the Commissioner said:

The sole question here is whether the words “Diamonddust” so nearly resembles the previously-registered marks “Diamond” and “Diamond Mills" as to be likely to deceive purchasers as to the origin of the goods upon which the marks appear. The word “Diamond " is undoubtedly the predominating feature of all of these marks and the one which would be likely to be remembered by the purchasers for the purpose of identifying the goods desired in making purchases subsequently. It is therefore believed that the marks so closely resemble each other that purchasers would be likely to accept goods sold under one of them supposing them to be the goods of the manufacturer using the other as a trade-mark.

Appellant contends that the word “ Diamond” is so commonly used in trade-marks for flour that it has lost its special or distinctive character and has become a generic term; also, that this was not taken into account in the above decision. It may be true that manufacturers and dealers so regard the word, but in my opinion the purchasing public would undoubtedly regard the word “ Diamond” as the predominating and distinguishing feature of all of these marks and that appellant's mark so closely resembles them as to be likely to cause confusion and mistake in the mind of the public and to deceive purchasers.

The decision of the Examiner of Trade-Marks is affirmed.

COLBURN AND WASHBURN v. HITCHCOCK.

Decided June 25, 1909.

145 0. G., 1022.

1. INTERFERENCE-MOTION TO DISSOLVE-TRANSMISSION.

Where the applications involved in an interference were involved in a prior interference, Held that a motion to dissolve was properly refused transmission as to any grounds which were or might have been raised on

a motion to dissolve in the prior interference. 2. SAME-SAME-SAME.

A motion to dissolve on the ground of irregularity in the declaration of the interference was properly refused transmission where the ground relied on to show irregularity raises a question which relates to the merits

of the case. 3. SAME-SAME-ADDITIONAL GROUND OF IRREGULARITY RAISED ON APPEAL.

Points alleged to constitute irregularity in the declaration of an interference and raised for the first time in the brief filed at the hearing on appeal from the decision of the Examiner of Interferences refusing to transmit a motion to dissolve can receive no consideration.

APPEAL ON MOTION.

MANUFACTURE OF SHEET-GLASS.

Messrs. Mauro, Cameron, Lewis & Massie for Colburn and Washburn.

Messrs. Christy & Christy and Mr. D. S. Wolcott for Hitchcock. BILLINGS, Assistant Commissioner:

Both parties to this interference have appealed from the decision of the Examiner of Interferences rendered on the motion of Colburn

and Washburn to transmit a motion to dissolve. Colburn and Washburn appeal from the portion of the decision refusing to transmit grounds 1 (a), 1 (c), 1 (d), and 3 thereof. Hitchcock appeals from so much of the decision as transmits certain grounds of the motion to dissolve. Colburn and Washburn also appeal from the decision of the Examiner of Interferences denying their motion to shift the burden of proof.

Rule 122 expressly provides that no appeal from the decision of the Examiner of Interferences on a motion to shift the burden of proof will be entertained, but that the motion may be reviewed on appeal from the final decision upon the question of priority of invention. The appeal from the decision denying the motion to shift the burden of proof is accordingly dismissed.

The record shows that as originally declared the issue of this interference consisted of three counts. The interference was dissolved as to count 1, on the ground that there was no interference in fact as to said count. Colburn and Washburn brought a motion to dissolve, on the ground that Hitchcock had no right to make any of the claims forming the issue, which motion was denied by the Primary Examiner. After the resumption of proceedings the case was recalled by the Primary Examiner, and the interference was dissolved, on the ground that Hitchcock's device was inoperative in certain par. ticulars. Hitchcock took no appeal from this decision dissolving the interference. The application of Colburn and Washburn was subsequently passed to issue and matured into a patent containing the claims forming the present issue. Following the dissolution of the interference Hitchcock continued the prosecution of his application ex parte. On March 18, 1909, this interference was redeclared, and the motion of Colburn and Washburn for dissolution was filed within thirty days thereafter.

The Examiner of Interferences refused to transmit the grounds of the motion to dissolve which allege that Hitchcock has no right to make the claims of the issue (a) because his device is inoperative, (6) because his reissue application as originally filed was for a different invention than his patent, and (c and d) because Hitchcock's reissue application is invalid in that he has failed to comply in certain particulars with the laws and rules of procedure with regard to reissue applications, for the reason that Colburn and Washburn might have raised them or did raise them in a former motion to dissolve in this interference and on this identical issue. He held that whether Colburn and Washburn failed to include them in their former motion to dissolve or whether they were denied in the decision on said motion Colburn and Washburn are now precluded from urging them, under the practice set forth in Townsend v. Thullen v. Young, (ante, 15; 138 O. G., 768.)

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