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It appears that prior to the date upon which the present proceeding was instituted, April 13, 1909, the trade mark claimed by the Ratcliff-Sanders Grocer Company was published in the OFFICIAL GAZETTE. Thereupon the California Fruit Canners Association filed a notice of opposition against the registration of that mark, but by failure to present testimony in the cause permitted judgment by default to be rendered against it.

It appears from the affidavit of Stone, counsel for the California Fruit Canners Association, that in January, 1909, during the pendency of the opposition proceedings, negotiations were entered into between the parties, the Ratcliff-Sanders Grocer Company offering to concede priority of use of the “ Carnation” brand on canned fruits to the California Fruit Canners Association in the opposition andin the interference that will probably later be declared by the Examiner of Trade Marks in consideration that the California Fruit Canners Associationconcede to the Ratcliff-Sanders Grocer Company in such probable interference the use of the word “ Carnation" on canned vegetables, dried fruits, pickled fruits, and vegetables and preservesand that, upon advice of counsel, the California Fruit Canners Association did not forward a concession of the character proposed by its adversary, in view of a ruling of the Commissioner of Patents on March 15, 1909, in the case of The California Fruit Canners A880ciation v. Knothe Wells & Bauer Company, which referred to several decisions of the Commissioner and of the Court of Appeals of the District of Columbia relating to the identity of merchandise of this character.

It appears, however, that Ratcliff-Sanders Grocer Company, in accordance with its suggestion, prior to May 10, 1909, placed in the hands of its counsel a concession of priority as to the use of the mark on canned fruits. It is stated in the affidavit accompanying this motion that

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such concession of priority when executed should have been filed in the Patent Office and appear of record in the above-entitled matter that such concession, if executed, should be and is prima facie evidence of the concession of prior use to the California Fruit Canners Association by the Ratcliff-Sanders Grocer Company.

It is alleged that, from the above statement of facts this affiant, the California Fruit Canners Association had good grounds for assuming and believing that said RatcliffSanders Company would in due time, before the time for the California Fruit Canners Association to take the necessary testimony to prove such priority, file the above-mentioned concession executed by said Ratcliff-Sanders Grocer Company, or would so amend the application for the registration of the “ Carnation" brand as to eliminate all classes of goods of the same general class as those claimed by the California Fruit Canners Association.

Acting upon this assumption the California Fruit Canners Association did not take testimony within the time fixed by the Examiner of Interferences, but at substantially the expiration of the time asked for an extension of time in which to take testimony. This was refused by the Examiner of Interferences, upon the ground that the showing in support of the motion was insufficient, and thereafter judgment was rendered against the California Fruit Canners Association. Subsequently the California Fruit Canners Association filed a motion before the Examiner of Interferences to reopen the case, in view of substantially the same facts now presented. That motion was denied, upon the ground that the facts shown in support of the motion were insufficient, and I do not find in the record of this case or in the affidavit in support of the present motion any additional reasons which would warrant restoring the jurisdiction of the case to the Examiner of Interferences for further consideration of this matter. It is obvious from the facts set forth in Stone's affidavit that the California Fruit Canners Association failed to take testimony within the time set by reason of its belief that the RatcliffSanders Grocer Company would file a concession of priority which would be construed by the Office to the advantage of the California Fruit Canners Association. The California Fruit Canners Association was aware prior to the date set for the commencement of the taking of testimony that the concession which had been offered by the Ratcliff-Sanders Grocer Company would not be acceptable to the Office and it would be necessary in order to preserve its rights for the California Fruit Canners Association to take testimony. In failing to take testimony upon the assumption that its adversary would file a concession which would be advantageous to the interests of the California Fruit Canners Association the latter took the risk of the loss of its rights by failure to take testimony.

The petition is accordingly denied.

SHINER v. Edison.

Decided June 1, 1909.

147 0, G., 517.

1. INTERFERENCE— PRIORITY-CONCEALMENT OF INVENTION.

Where the development of an invention extended over a year and required the expenditure of $100,000 and was witnessed by a large number of employees and visitors and where the party so developing the invention was also the first to flle his application, Held that there is no such conceal. ment of the invention as to bring the case within the doctrine of Mason v. Hepburn, (C. D., 1898, 510; 84 O. G., 147.)

2. SAME-STIPULATION IN LIEU OF TESTIMONY.

The Aling of stipulations in uncertain and indefinite language which requires construing by the Office instead of an undisputed statement of facts or testimony duly taken with opportunity for cross-examination cannot be too strongly condemned.

ON APPEAL.

ROTARY KILN.

Mr. J. Walter Douglass for Shiner.
Mr. Frank L. Dyer for Edison.

MOORE, Commissioner:

This is an appeal by Edison from the decision of the Examinersin-Chief affirming the decision of the Examiner of Interferences awarding priority to Shiner.

The invention in issue relates to certain improvements in kilns adapted to burn cement, and its object is to prevent the carrying off, through the flue from the furnace, of the fine particles of cement disintegrated during the burning in the kiln. The burning-chamber comprises a rotary cylinder leading into the stack or flue, a chamber being provided at the base of the stack for the purpose of decreasing the speed of the discharged gases and allowing the material carried by the gases to fall to the hopper-shaped bottom of said chamber, which is provided with a conveyer for returning the deposited material to the rotary kiln.

The issue of the interference is as follows:

1. In a rotary kiln, a stack provided with a base having a chamber adapted to receive and to retain matter dropped from the stack, a kiln-tube connected with the base and terminating with its Interior portion slightly below the chamber thereot, and movable means for positively conducting the descending matter from the stack-fue directly into said kiln.

Shiner is a patentee; but the application upon which his patent was granted was filed during the pendency of Edison's application in the Patent Office, and he cannot therefore obtain any advantage by reason of the fact that a patent was issued to him. Shiner alleges that he conceived the invention July 15, 1903; that he made drawings of the same July 20, 1904; that he disclosed it to others July 25, 1904; that he reduced the invention to practice about the first of August, 1904, by the construction of a full-sized kiln, which was successfully operated, andthat he has manufactured others for use since the early part of 1905, and that thirty or more such kilns containing his said invention as defined by the count of this interference have been installed and are now in successful use.

Edison alleges in his preliminary statement that he conceived the invention January 1, 1899; that he made working drawings of the

invention January 12 and 13, 1899; that he made a further working drawing of the invention on July 25, 1900; that he disclosed his invention to others in January, 1899; that in September, 1899, he made a wooden model of the invention; that immediately after the completion of said wooden model the construction of a full-sized apparatus was commenced embodying said invention and was finished about August, 1900, and that said full-sized apparatus was operated for several weeks and thoroughly tested in August, 1900, at deponent's laboratory at Orange, N. J., and except for full-sized apparatus deponent has completed no other apparatus embodying the invention.

The Examiner of Interferences held that although Edison was the first to conceive the invention and the first to file his application, Shiner, who had conceived and reduced the invention to practice prior to Edison's filing date, was entitled to priority of invention upon the ground that Edison, by reason of his long delay in the filing of the application after his alleged reduction to practice and because of his concealment of the invention from the public, had forfeited his rights in favor of Shiner, under the doctrine announced in Mason v. Hepburn, (C. D., 1898, 510; 84 O. G., 147; 13 App. D. C., 86;) Quist v. Ostrom, (C. D., 1904, 594; 108 O. G., 2147; 23 App. D. C., 69;) Matthes v. Burt, (C. D., 1905, 574; 114 O. G., 764; 24 App. D. C., 265,) etc.

Upon appeal each of the Examiners-in-Chief wrote a separate opinion, the conclusion of the majority being that the decision of the Examiner of Interferences was right.

One of the members of the Examiners-in-Chief stated as an additional reason for awarding priority of invention to Shiner that Edison did not claim the invention until after he had become cognizant of the claims of Shiner's patent, which he thereupon copied and inserted in his application.

No depositions of witnesses are presented; but the case is submitted upon stipulation as to certain facts which it is agreed shall be accepted in lieu of testimony on the part of the respective parties. There is, however, a disagreement as to the meaning of the terms of the stipulation, as will hereinafter appear. The filing of stipulations of this character, instead of presenting an undisputed statement of facts or testimony duly taken with opportunity for crossexamination, cannot be too strongly condemned. A stipulation is defined in Bouvier's Law Dictionary asan agreement between counsel respecting business before the court.

It is clear that such stipulation should be a positive agreement in terms the meaning of which should not need to be construed by the court.

The stipulation in this case after reciting certain facts appearing in the files of the respective applications presents the case of the respective parties as follows:

SHINER'S CASE.

1. The invention defined by the interference issue, the first claim only, of the Shiner Patent No. 844,623 of February 19th, 1907, was conceived by the patentee Shiner, on or about July 15, 1903. He made drawings of the invention about July 20th, 1904, and explained the same to others about the 25th of July, 1904.

2. That he first embodied the invention, the issue of this interference, in a rotary kiln, at the Atlas Portland Cement Company's Work, at Northampton, Pennsylvania, July 29, 1904, and the kiln was started up with said invention therein about August 1st, 1904, and worked successfully since said date. That since said first day of August, 1904, thirty odd rotary kilns, have been modified to embody in structure the invention, the issue of this interference, by the said Shiner and others under his superintendence of installation as set out in his patent of February 19th, 1907, No. 844,623, and all of which kilns embodying the said Shiner invention are now in successful operation, at different points at this time. The cost of changing an ordinary rotary cement-clinkering kiln to the Shiner patented invention to effect a reduction of waste in the clinkering of the cement materials is between six and ten dollars per kiln. That this can be accomplished by principally a bricklayer under plans of the Shiner invention. The Shiner invention is designed to conserve waste in the production of Portland cement.

EDISON'S CASE.

1. The invention defined by the interference issue was conceived by the party Edison on or about January 1, 1899, and was at that time fully disclosed by him to others at Orange, and elsewhere within the United States, but not to his knowledge at any time to Shiner and his associates.

2. In the month of January, 1899, Edison had working drawings made of the invention and in the month of July of that year he caused a second set of working drawings thereof to be made. In the month of September, 1899, he made a wooden model of the invention and from time to time during the year 1899, and particularly in the month of February of that year, he made numerous sketches illustrating the invention of the issue.

3. Edison began in October, 1899, and completed in August, 1900, at the Edison laboratory, West Orange, N. J., a complete, full-size kiln involving therein the issue and immediately after its completion this kiln was successfully tested and the apparatus was successfully operated and large amounts of cementtorming material were burned to clinker which was ground to form Portland cement.

This cement was not made use of commercially, however, but was merely tested to determine that the clinker was properly burned. These operatious constituted a complete reduction to practice of the kiln, in which was embodied the issue. The development of the Edison kiln involved expenses of over one hundred thousand dollars, and were witnessed by large numbers of employees of the Edison laboratory and by numerous visitors, none of whom, however, was Shiner and his associates to the best of the knowledge and belief of the

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