*Wayne County Preserving Company v. The Burt Olney Canning Company.. 318 DECISIONS OF THE COMMISSIONER OF PATENTS FOB THE YEAR 1909. RUTHVEN V. CHRISTENSEN. Decided December 22, 1908. 138 O. G., 257. INTERFERENCE-EVIDENCE-SUB-SURREBUTTAL TESTIMONY. Leave to take sur-surrebuttal testimony will not be granted where it appears that the testimony in surrebuttal was not in the nature of a surprise and was such as might have been guarded against in the taking of rebuttal testimony. APPEAL ON MOTION. GEARING FOR WASHING-MACHINES. Mr. John H. McElroy for Ruthven. Mr. Chas. O. Shervey and Messrs. Bulkley, Durand & Drury for Christensen. MOORE, Commissioner: This is an appeal by Ruthven from the decision of the Examiner of Interferences refusing to grant him leave to take sur-surrebuttal testimony. It appears from affidavits in support of the motion that the question presented in this case is that of originality of invention, Christensen claiming to have disclosed the invention to Ruthven in October, 1904. Ruthven during the taking of his prima facie evidence endeavored to show that he had reduced the invention to practice prior to the date alleged by Christensen of conception and disclosure of the invention. Christensen on taking his proofs, however, showed that the machines concerning which Ruthven's witness testified were not made until subsequent to the date of his alleged disclosure to Puthven. Ruthven thereupon took rebuttal testimony to show that Christensen could not have disclosed it at the time alleged, because the machine in connection with which the disclosure was alleged to have been made was in the possession of Ruthven's daughter from 1900 until August, 1905. It was further testified that in August, 1905, this machine was taken from the home of his daughter to the factory at No. 472 Carroll avenue and exchanged for a new machine, this delivery having been made by one Charlie Cox, a grocerman. Christensen, having obtained leave to take surrebuttal testimony, endeavored to show that the machine last referred to could not have been taken from the home of Ruthven's daughter in August, 1905, but was probably taken back to the factory in June, 1904. Cox was called as a witness and testified that he took a machine from the residence of Mrs. Krell (Christensen's daughter) to the factory of the Thistle Washing Machine Company, which was not at that time located at No. 472 Carroll avenue, but in the other side of the building, Nos. 36-38 Union Park Place. It is testified by a witness, Kirby, that the Thistle Washing Machine Company moved from Nos. 36-38 Union Park Place to No. 472 Carroll avenue in May, 1905, and that a delivery on the Union Park Place side could not have been made to the factory when located on Carroll avenue. It is now requested that leave be given to take sur-surrebuttal testimony to discredit the testimony of Cox as to the facts testified to in connection with the delivery of the machine. The grounds given in support of the motion do not show that the testimony which was produced by Christensen in surrebuttal was in the nature of a surprise which could not have been guarded against by Ruthven in the taking of his rebuttal proofs. The witnesses called by him testified that the machine which was in possession of his daughter from 1900 to 1905 was delivered by one Charlie Cox, and no sufficient reason appears why Cox was not interviewed for the purpose of acquiring either an affirmation or denial of such facts prior to the closing of the rebuttal testimony. The testimony presented in behalf of Christensen was such as might, by reasonable prudence, have been guarded against and is not in the nature of a surprise which would warrant the taking of sur-surrebuttal testimony. The decision of the Examiner of Interferences is affirmed. EX PARTE SHANNON, WARD & COMPANY. Decided December 23, 1908. 138 O. G., 257. TRADE-MARKS-" CELERY ADE" FOR BEVERAGES-DESCRIPTIVE. The words " 'Celery Ade" as a trade-mark for beverages and syrups therefor, Held to be merely descriptive in the sense contemplated by section 5 of the Trade-Mark Act of 1905, and therefore not registrable. ON APPEAL. TRADE-MARK FOR SOFT DRINK. Messrs. Bulkley, Durand & Drury for the appellants. MOORE, Commissioner: This is an appeal from the action of the Examiner of Trade-Marks refusing to register the words "Celery Ade" as a trade-mark for beverages and syrups therefor upon the ground that the words are descriptive, and therefore not registrable under the provisions of section 5 of the act of 1905. It is urged in behalf of the appellants that the words "Celery Ade" are merely arbitrary words; that the suffix "ade," if having any meaning, is suggestive of a beverage and of some physical aid which was given to the human body because of the tonic effect of the extract of celery, and consequently the mark is not merely descriptive within the meaning of the language of the statute. This contention is not believed to be well founded. The suffix "ade" is one which is generally recognized as indicating a sweetened beverage having the characteristics of the name to which the suffix is addedfor example, lemonade is defined in the Century Dictionary as "a beverage consisting of lemon-juice mixed with water and sweetened." Orangeade is also defined as "a drink made of orange-juice and water sweetened." It is a matter of common knowledge that extracts of celery are largely used as flavoring for articles of food. The significance, therefore, of "Celery Ade" is obvious and would indicate to the ordinary purchaser a sweetened beverage having the characteristic flavor of celery. Under these circumstances it is believed that the words are merely descriptive in the sense contemplated by section 5 of the act of 1905 and are not therefore registrable. The decision of the Examiner of Trade-Marks is affirmed. EX PARTE PROCTOR. Decided December 4, 1908. 138 O. G., 258. 1. APPEAL TO EXAMINERS-IN-CHIEF-FORMAL OBJECTIONS TO DRAWINGS-FORWARDING APPEAL. The correction of the drawings which are lacking merely in artistic merit is not one of the formal matters contemplated by Rule 134 which must be settled before the case can be appealed to the Examiners-in-Chief. 2. ABANDONMENT OF APPLICATION-SUFFICIENCY OF ACTION-CORRECTION OF FORMAL MATTERS. Where claims are finally rejected and the formal requirement that the drawings be corrected to meet the requirement of the rule with respect to artistic merit is also made final, the filing of an appeal within the year fol lowing the final rejection constitutes a sufficient action to save the case from abandonment, although the drawings have not been amended as required, the formal objection being such as may be corrected after the final decision on the merits. ON PETITION. COIN-CONTROLLED MACHINE FOR ENGRAVING NAME-PLATES. Mr. A. W. Proctor pro se. BILLINGS, Assistant Commissioner: This is a petition from an action of the Primary Examiner holding petitioner's application to have become abandoned for lack of responsive prosecution. After a number of actions the Primary Examiner finally rejected all the claims of the application on July 23, 1907. Prior to this time he had advised applicant that the drawing would be admitted for the purpose of examination only, the lines thereon being rough. On July 21, 1908, applicant filed an appeal to the Examiners-in-Chief. The Examiner held that under Rules 54 and 134 the appeal could not be forwarded until the drawing was corrected and that as applicant had failed to respond to the Examiner's requirement with respect to the drawing the filing of an appeal to the Examiners-in-Chief was an incomplete response and the application was abandoned. This action was repeated and made final, and the present petition. was taken. As stated by the Examiner, Rule 134 provides that except in cases of division all preliminary and intermediate questions relating to matters not affecting the merits of the invention must be settled, before the case can be appealed to the Examiners-in-Chief. But Rule 54 also provides: 54. The foregoing rules relating to drawings will be rigidly enforced. Every drawing not artistically executed in conformity thereto may be admitted for purposes of examination if it sufficiently illustrates the invention, but in such cases a new drawing must be furnished before the application can be allowed. The Office will make the necessary corrections at the applicant's option and cost. As has been stated in prior decisions, the rules should be construed together in order that all the provisions thereof may be made effective. It seems clear that Rule 54 contemplates that the drawing of an application which merely lacks artistic merit shall be accepted as sufficient until it is finally determined whether a patent shall issue thereon. The reasons for this provision of Rule 54 are obvious. To require an applicant to file new drawings prior to the allowance of his application when the drawings orginally filed were objectionable |