In the case of the Yale & Towne Mfg. Co. the president called the matter to the attention of the officers at the factory by letter on February 3, 1906, and again on March 13, 1906. The matter was referred to the employees Bigelow and Cundell to devise a remedy, who soon perfected their improved lock, containing means for locking the stopwork. This lock met with the approval of the company, and its commercial manufacture was undertaken. In May, 1906, Lawrence had occasion to consult Bigelow concerning another matter, and during the interview Bigelow disclosed to him the new lock embodying the improved dogging device. Thereupon Lawrence informed Bigelow that he himself had made that invention nearly two years before and turned over his lock embodying it to the officers of the company. After much search the device of Lawrence was found, and the company then decided to file the application on the Lawrence construction, which was done on May 29, 1906.

The decision in this case turns upon the question of whether the work of Lawrence in 1904 constituted a reduction to practice of the invention, and, if so, whether through his subsequent conduct he forfeited his rights to the invention.

It is not claimed that the Lawrence device of 1904 was more than an illustrative device. Its workmanship indicates that it was not in the perfected condition necessary for the commercial device. While capable of operation, the improvement was still in its crude stage. The officers of the company do not seem to have been impressed with it, and it was laid aside to await other improvements that were considered more pressing, and apparently was finally entirely forgotten. It was deposited in the model-room, and when the necessity for such an improvement was forced upon the company's attention by the Chicago robberies none of the officials thought of Lawrence's device or that it involved the desired improvement. Other men were put at work, and Bigelow and Cundell, with no knowledge of the Lawrence device, perfected the invention in another specific form, which the company proceeded to manufacture and place on the market. It was by mere accident that Lawrence learned of this and had his old model resurrected, with the result that an application was filed thereon. Lawrence seems to have taken no further interest in his invention after turning the device over to the company until he learned of the work of others, and but for the Chicago robberies and the information he accidentally obtained of the device of Bigelow and Cundell his lock would apparently have reposed indefinitely in the model-room. Under these circumstances I fail to see anything more in the Lawrence devices of 1903 and 1904 than abandoned experiments. (Fefel v. Stocker, C. D., 1901, 269; 94 O. G., 433; 17 App. D. C., 317; Tyler v. St. Amand, C. D., 1901, 301; 94 O. G., 1969; 17 App. D. C., 464; Howard v. Hey, C. D., 1901, 375; 95 O. G., 1647;

18 App. D. C., 142; Adams v. Murphy, C. D., 1901, 401; 96 O. G., 845; 18 App. D. C., 172; Quist v. Ostrom, C. D., 1904, 594; 108 O. G., 2147; 23 App. D. C., 69; Hillard v. Brooks, C. D., 1904, 658; 111 O. G., 302; 23 App. D. C., 526; Paul v. Hess, C. D., 1905, 610; 115 O. G., 251; 24 App. D. C., 462; Ocumpaugh v. Norton, C. D., 1905, 632; 115 O. G., 1850; 25 App. D. C., 90; Gordon v. Wentworth, C. D., 1908; 453, 135 O. G., 1125; Duff v. Latshaw, C. D., 1908, 492; 136 O. G., 658; Moore v. Hewitt, C. D., 1908, 516; 136 O. G., 1535.)

If it be assumed, however, that the work of Lawrence constituted a reduction to practice of the invention, in my opinion he would not be entitled to the award of priority under the principle of forfeiture announced in Mason v. Hepburn, (C. D., 1898, 510; 84 O. G., 147; 13 App. D. C., 86;) Thomson v. Weston, (C. D., 1902, 521; 99 O. G., 864; 19 App. D. C., 373;) Matthes v. Burt, (C. D., 1905, 574; 114 O. G., 764; 24 App. D. C., 265;) Gordon v. Wentworth, (C. D., 1908, 453; 135 O. G., 1125;) and other decisions of the Court of Appeals of the District of Columbia. As heretofore stated, the evidence shows that the Lawrence device was laid aside by the officials of his company on account of other business and improvements that were considered more important and was entirely forgotten and that Lawrence took no further interest in the matter. The Lawrence invention had not been given to the public, but information thereof was confined to a few officials and employees of the company, and the device was finally deposited in the model-room, to which admittance was granted only by special permission. In addition to the Chicago robberies to explain the revival of interest by the Yale & Towne officials they obtained knowledge that their rivals, the Russell & Erwin Mfg. Co., had devised a lock to prevent such robberies, as shown by the letters exchanged between said companies. The following statement by the Court of Appeals of the District of Columbia in the case of Howard v. Bowes (C. D., 1908, 547; 137 O. G., 733; 31 App. D. C., 619, 625;) is considered applicable in this case:

His invention, according to his own statement, was perfected sometime in the fall of 1904, and yet he did nothing toward asserting his rights until more than a year had elapsed, and his reason for then acting, as above stated, was that Bowes had placed his rack upon the market. Howard was under no obligation to give the public the benefit of his discovery, but by failing to do so he assumed the risk that some other inventor might do so and thus in the eyes of the law become the prior inventor, and as such entitled to a patent. (Mason v. Hepburn, C. D., 1898, 510; 84 O. G., 147; 13 App. D. C., 86; Thomson v. Weston, C. D., 1902, 521; 99 O. G., 864; 19 App. D. C., 373; Matthes v. Burt, C. D., 1905, 574; 114 O. G., 764; 24 App. D. C., 265; Bliss v. McElroy, C. D., 1907, 537; 128 O. G., 458; 29 App. D. C. 120; Richards v. Burkholder, C. D., 1907, 563; 128 O. G., 2533; 29 App. D. C., 485.)

To the contention of Lawrence that activity on the part of the Yale & Towne people antedated their knowledge of the device of their rival it is sufficient to state that the original work of Bigelow and

Cundell, who were not the agents of Lawrence, cannot inure to the benefit of the latter. (Hunter v. Stikeman, C. D., 1898, 564; 85 O. G., 610; 13 App. D. C., 214, 226; Robinson v. McCormick, C. D., 1907, 574; 128 O. G., 3289; 29 App. D. C., 98, 111; Howell v. Hess, C. D., 1908, 315; 132 O. G., 1074; 30 App. D. C., 194.)

The decision of the Examiners-in-Chief is affirmed.

EX PARTE SHERMAN.

Decided June 18, 1909.

147 O. G., 237.

DESIGN-PATENTABILITY-MECHANICAL ADVANTAGES IMMATERIAL.

The possession of features having certain mechanical advantages Held to have no bearing upon the question of the patentability of a design. APPEAL from Examiners-in-Chief.

DESIGN FOR A NAIL.

Messrs. Alexander & Dowell for the applicant.

BILLINGS, Assistant Commissioner:

This is an appeal from the decision of the Examiners-in-Chief affirming the action of the Examiner of Trade-Marks and Designs rejecting a claim for an ornamental design for a nail.

The reference is: Catalogue for 1890, Simons Hardware Company, St. Louis, Figures C3346 and C3354.

The Examiner rejected the claim in this case, on the ground that the differences between applicant's design and that of the reference involved no invention as an ornamental design.

It is contended by applicant that the nail shown in the reference has a smooth concavo-convex head attached to a shank, the exterior surface of the head being absolutely plain, smooth, and unbroken in contour, whereas the nail shown in the application has a central circular protuberance, which imparts a stepped appearance thereto when viewed from the side and when viewed from the top the appearance of two concentric disks, one much smaller than and rising above the surface of the other. While there is a certain difference in the appearance of the two nails, it is not thought that this difference is such as to have required invention as an ornamental design.

Applicant also refers to certain advantages to be derived from the presence of the central protuberance—such, for example, as protecting a skirt from injury and preventing distortion of the head when the nail is driven. These are only mechanical advantages and have 10 bearing upon the question of the patentability of the design. The decision of the Examiners-in-Chief is affirmed.

EX PARTE SUMNER IRON WORKS.

Decided August 27, 1909.

147 O. G., 237.

1. TRADE-MARKS-“IF NOT RIGHT-WRITE-WILL MAKE RIGHT "—ADVERTISING PHRASE NOT REGISTRABLE.

The phrase "If Not Right-Write-Will Make Right" is in the nature of a guaranty that the merchandise to which it is applied is of good quality, and it is not the proper subject of the technical trade-mark protection, (citing in re Central Consumers Company, post 329; 140 O. G., 1211; 32 App. D. C., 523.)

2. SAME-Mark ContainING DESTRUCTIVE PHRASE-NOT REGISTRABLE.

A mark comprising a circular figure bearing a monogram and the legend "If Not Right-Write-Will Make Right" is not registrable, since the legend is a descriptive phrase (citing Johnson v. Brandau, post, 303; 139 O. G., 732; 32 App. D. C., 348.)

ON APPEAL.

TRADE-MARK FOR SAWMILL, SHINGLE-MILL, WELL-DRILLING, PAPER-MILL, MINING, AND SMELTING MACHINERY, ETC.

Mr. E. G. Siggers for the applicant.

TENNANT, Assistant Commissioner:

This is an appeal from the action of the Examiner of Trade-Marks refusing to register a trade-mark comprising a circular figure bearing a monogram and also the legend "If Not Right-Write-Will Make Right."

The refusal of the Examiner to register the mark is based upon the fact that the legend above referred to is descriptive of the merchandise, and in view of the decision of the Court of Appeals of the District of Columbia in the cases in re Central Consumers Company (post, 329; 140 O. G., 1211) and Johnson v. Brandau (post, 303; 139 O. G., 732) is not registrable.

It is contended in behalf of the appellant that these words do not signify the grade, ingredients, or properties of the articles of merchandise, but merely suggest the general merits or excellencies of articles as coming from the applicant. It is further stated that the arrangement of these words upon the circular figure is a part of the integral design and that the mark as a whole should be permitted registration in the manner in which it is used upon the merchandise.

The phrase quoted is not merely a suggestion of the general excellence of the merchandise, as was the case in the authorities referred to by appellant, but is in the nature of a guaranty that the merchandise bearing this mark is of a good quality and that if it is not satisfactory suitable reparation will be made. It is, in my opinion, of the advertising character of which the Court of Appeals said in re Central Consumers Company, supra:

It was evidently the intention of Congress in placing these restrictions in the

Trade Mark Act to prohibit anyone from acquiring a pronertv-right protected

by law in its exclusive use, in a name possessing any inherent signification that would, of itself, enhance the sale or value of the article or articles to which it may be applied. In other words, it was intended to limit the selection to mere arbitrary words or designs, the value of which should consist alone in their becoming fixed in the public mind through continued use on the goods of the owner. It was not intended that the mark should lend value to the goods, but that the quality of the goods and the reputation of the owner should ultimately make the mark valuable as a symbol in the connection in which it may be used. Under the terms of this decision the phrase is clearly not the proper subject of a technical trade-mark protection.

In respect to the contention that the mark is registrable as a whole this case clearly falls within the ruling of the Court of Appeals of the District of Columbia in the case of Johnson v. Brandau, supra, in which it was held that where descriptive matter appears upon a mark presented for registration the mark should be refused registration; but the applicant should be allowed to disclaim or remove the objectionable features from the drawing forming part of his application for registration. In view of these conclusions it must be held that the action of the Examiner refusing the registration of this mark as presented is right.

The decision is accordingly affirmed.

CALIFORNIA FRUIT CANNERS ASSOCIATION v. RATCLIFF-SANDERS GROCER COMPANY.

Decided September 20, 1909.

147 O. G., 238.

TRADE-MARKS-OPPOSITION-FAILURE TO TAKE TESTIMONY-REOPENING.

Where a party to an opposition proceeding failed to take testimony, under the belief that a concession would be filed by the other party which would be advantageous to its interests, Held that it took the risk of the loss of its rights by such failure to take testimony and that jurisdiction would not be restored to the Examiner of Interferences to consider a motion to reopen and set new times for taking testimony.

ON PETITION.

TRADE-MARK FOR CANNED FRUITS.

Mr. W. R. Stone and Mr. Eugene C. Brown for California Fruit Canners Association.

Mr. F. T. F. Johnson for Ratcliff-Sanders Grocer Company.

TENNANT, Assistant Commissioner:

This is a petition that jurisdiction in the above-entitled interference be restored to the Examiner of Interferences to consider a motion to reopen and set times for the taking of testimony.