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indication of heat characteristics and conditions as to dryness, etc., as in the other claims. We deem it unnecessary to add anything by way of argument, to the grounds assigned by the Primary Examiner and the Examiners-in-Chief in their decisions which are sufficiently full, and satisfactory.
The decision appealed from will be affirmed. It is so ordered, and that the clerk certify this decision to the Commissioner of Patents as the law requires.
(Court of Appeals of the District of Columbia.]
MARK v. GREENAWALT.
Decided December 22, 1908.
140 O. G., 509; 32 Apr. D. C., 267.
The decision of the Commissioner of Patents awarding priority of Invention of a process to G. reversed for the reasons given in the companion Interference involving apparatus used in carrying out the process, which
18 decided herewith. Mr. Charles D. Davis and Mr. C. C. Bulkley for the appellant.
Mr.J.M. Spear and Mr. Ellis Spear for the appellee. SHEPARD, C. J.:
This is an interference proceeding between opposing applicants for a patent for a process of subjecting materials to the action of air and other gases. The process is practiced by the introduction of air or other oxygen-containing gas through the porous bed or hearth of a reverberatory furnace.
While an interference was depending between the same parties on applications for patents for an improvement in furnaces adapted to the use of the process, Mark applied for this process patent, and the same was issued to him May 19, 1903. On January 26, 1904, Greenawalt filed a division of the application for his apparatus invention, and this interference was declared between them, on the process claims. Both parties relied on their apparatus applications as constructive reductions to practice, and as Mark's was the earlier one, the burden was upon Greenawalt. He attacked the operativeness of Mark's apparatus. No tests of the same had then been made by either party. The Examiner of Interferences decided that Mark's apparatus was apparently operative and awarded priority to him. On appeal to the Examiners-in-Chief this decision was affirmed save as to counts six and seven of the issue, of the possession of the invention of which it was said, that Mark had no evidence prior to the disclosure of Greenawalt's application. Mark did not appeal from Any part of that decision, but Greenawalt did.
The appeal was heard by the Commissioner with the later appeal of Mark from the decision of the Examiners-in-Chief in the interference proceeding relating to the apparatus. The evidence in that case of the tests of the Mark furnace, made in February, 1906, was by stipulation considered in this one. There was a practical consolidation of the two cases, but a separate decision was made in each, and separate appeals were taken in each case to this court. The Commissioner having decided that the tests of Mark's furnace demonstrated its inoperativeness, awarded priority in that case to Greenawalt. Holding that that determination removed the foundation of Mark's claim of that application as a constructive reduction to practice of the process invention, he reversed the decision in favor of Mark and awarded priority to Greenawalt in this case also. The appeals numbered, respectively, in this court as 506, and 507, were submitted together as they had been to the Commissioner.
Having reversed the Commissioner's decision holding that Mark's apparatus was inoperative, in No. 507, (ante, 288; 138 O. G., 965,) it follows that his decision in this case must also be reversed. It is so ordered and that this decision be certified to the Commissioner of Patents as required by law.
[Court of Appeals of the District of Columbia.]
J. A. SCRIVEN COMPANY V. THE W. H. TOWLES MANUFACTURING
COMPANY, MORRIS & COMPANY, AND NORTH BROTHERS & STKAUS8.
Decided January 5, 1909.
140 0. G., 510; 32 App. D. C., 821.
The question involved having been decided by the courts of appeals for the fourth and eighth circuits," in which decisions we fully concur, we do not deem it necessary to discuss the propositions advanced by appellant in this appeal. (Brill v. Wash, Ry. & El. Co., C. D., 1908, 377;
134 O. G., 1563 ; 30 App. D. C., 255.)” 2. SAME-BUFF-COLORED KNITTED STRIP INSERTED IN SEAU OF A GARMENT
EFFECT OF EXPIRATION OF PATENT. The decision of the Commissioner of Patents refusing to register as a trade-mark for men's undergarments the representation of a butt-colored strip of knitted material interposed lengthwise thereof on the ground that the registration would extend the monopoly enjoyed by applicant under the Brown patent, which purported to cover such an inserted strip and which expired in 1898, Held to be founded in reason and sustained by authority. Mr. Arthur v. Briesen for the appellant. Mr. Arthur Steuart for the appellees.
This case comes here on an appeal from concurrent decisions of the Patent Office sustaining the opposition of appellees to the registration as a trade mark by appellant of a pictorial representation of a buff-colored strip of knitted material interposed lengthwise of a pair of drawers made of woven fabric.
In 1881 a patent was issued to Charles A. Brown covering, or, at least, purporting to cover, an inserted strip of knitted material in woven undergarments, the function of said strip being to give olasticity to the garment at the point of insertion. This patent was acquired in 1883 by Jeremiah A. Scriven, a manufacturer of drawers. In 1885 Scriven formed a partnership under the firm-name of J. A. Scriven & Company, which firm commenced the manufacture of drawers, under the Brown patent, marking and advertising their output as " Patented June 28, 1881." This firm in 1891 was displaced by the appellant corporation, which continued to manufacture and mark drawers as before until the patent expired in 1898.
The Examiner of Interferences and the Commissioner in turn sustained the opposition to the registration of appellant's alleged mark on the ground that the application of the buff strip to garment during its manufacture was purely functional and not intended for, and not a proper subject of, trade-mark. Both tribunals of the Patent Office found that the granting of appellant's application would result in restricting the use of buff knitted material, which is a common article of commerce and the best material for the purpose to which it has been applied by appellant. In other words, that to register this mark would prolong, to a measurable degree at least, the monopoly enjoyed under the Brown patent.
In J. A. Scriven Co. v. Morris (154 Fed., 914) the right of appellant to this alleged mark was in issue, and the conclusion of the court was adverse to appellant. The Court said:
The complainant is now seeking to have the court rule that although, by the expiration of the patent, the use of the strip of insertion is free to all, the defendants are to be enjoined from using it because they use it of the same color as complainant and the patentee did when they were operating under the patent. To so decide would be in many cases to extend indefinitely the monopoly of the patent.
On appeal to the Court of Appeals for the Fourth Circuit, the judgment of the trial court was affirmed. (158 Fed., 1020.)
The same question was passed upon at the September term, 1908, of the Court of Appeals for the Eighth Circuit, in Ferguson-Mckinney Dry Goods Co. v. J. A. Scriven Co., (165 Fed., 639, 655,) and the same conclusion reached in a carefully-considered and exhaustive opinion.
21895-H. Doc. 124, 61-2--21
In view of the above decisions, in which we fully concur, we do not deem it necessary to discuss the propositions advanced by appellant in this appeal. (Brill v. Wash. Ry. & El. Co., C. D., 1908, 377;
& 134 O. G., 1563; 30 App. D. C., 255.)
We conclude that the decision of the Commissioner, in refusing appellant's application for registration, was founded in reason, and sustained by authority.
T'he decision of the Commissioner of Patents is affirmed, and the clerk of this court will certify this opinion and the proceedings in this court to the Commissioner of Patents, as required by law.
[Court of Appeals of the District of Columbia.)
J. A. SCRIVEN COMPANY v. FERGUSON-MCKINNEY DRY GOODs Com.
Decided January 5, 1909.
140 O. G., 510; 82 App. D. C., 828.
Nr. Arthur v. Briesen for the appellant.
This is an opposition by another party to the registration of the mark involved in J. A. Scriven Company v. The W. A. Towles Manufacturing Company, Morris & Company, and North Brothers & Strauss, No. 509, just decided; ante, 310; 140 O. G., 510.
It follows that the decision will be the same as in the other case.
The decision of the Commissioner of Patents is affirmed, and the clerk of the court will certify this opinion and the proceedings in this court to the Commissioner of Patents, as required by law.
[Court of Appeals of the District of Columbia.!
IN RE MEYER BROTHERS COFFEE AND SPICE COMPANY.
Decided December 22, 1908.
140 O. G., 756; 32 App. D. C., 277.
1. TRADE-MARKS—"AMERICA'S STRENGTH FOR COFFEE—Not REGISTRABLE.
The words "America's Strength" are not registrable as a trade-mark for coffee, since the word “America " is clearly geographical, and the word
" Strength" as applied to coffee is descriptive of quality. 2. SAME-COMBINATION OF NON-REGISTRABLE WORDS.
A registrable trade-mark cannot be made by combining two nonregistrable words,
Mr. J. A. Carr for the appellant.
VAN ORSDEL, J.:
This is an appeal from a decision of the Commissioner of Patents refusing registration to appellant of the words “America's Strength" as & trade-mark for coffee. (C. D., 1908, 169; 135 0. G., 893.) Neither of the words used in this combination would, standing alone, be registrable as a trade-mark for coffee. The word "America” is clearly geographical. (Shaver v. Heller & Merz, 108 Fed., 821.) The word “ Strength,” if used as a mark on coffee, would be descriptive of quality and likewise prohibited by section 5 of the TradeMark Act of 1905. This court has held that a registrable mark cannot be made by combining two non-registrable words. (Kentucky Distilleries & Warehouse Co. v. Old Lexington Club Distilling Co., C: D., 1908, 417; 135 O. G., 220; 31 App. D. C., 323.)
The decision of the Commissioner is affirmed, and the clerk is directed to certify these proceedings, as by law required.
[Court of Appeals of the District of Columbla.)
GELTZ AND HOSACK V. CROZIER.
Decided January 5, 1909.
140 O. G., 757 ; 32 App. D. C., 324. INTERFERENCE-ISSUE—CONSTRUCTION.
Where the issue of an interference is in clear and unambiguous language and is capable of but one construction, the court will not read into it a
Ilmitation not expressed therein.
VAN ORSDEL, J.:
This is an appeal from a decision of the Commissioner of Patents in an interference proceeding, affirming the decision of the Board of Examiners-in-Chief, which, in turn, had affirmed the decision of the Examiner of Interferences, awarding judgment of priority to appellee, the junior party.
The invention before us relates to boiler-flues, and the issue is defined by but a single count, which reads as follows:
A boiler-flue having one end reduced in internal diameter and increased in external diameter, substantially as described.
As stated by the Commissioner in his opinion: The object of this lnvention is to provide a detachable boller-fue with an end ot increased thickness in order that the walls of the tube at the fire-box will be