of substantially the same thickness as the flue-sheet and thereby overcome the objection of unequal expansion and contraction due to the changes of temperature in the boiler and also to provide a flue which may be readily repaired.

Appellants' application was filed on November 24, 1905, while appellee did not file his application until March 22, 1906. On May 22, 1906, a claim from appellee's application, the count here in issue, was suggested to appellants for the purpose of interference. Upon the adoption of this claim, an interference was declared.

The record discloses, and it is not disputed, that appellants conceived the invention in September, 1904; but, not reducing their invention to practice prior to the filing of their application, they must be restricted to that date for a constructive reduction to practice. Appellee, on the other hand, testified that he conceived the invention in issue in May, 1904, and that, in the latter part of that month, disclosed it to one Alexander Hill. Hill was called as a witness and corroborated appellee as to the disclosure at that time of a boilertube, one end of which was decreased in its internal diameter and increased in its external diameter, and testified that he described to appellee a machine by which he thought such a tube could be made. All three tribunals of the Patent Office held this disclosure to be sufficient, and with them we fully agree.

Appellee has introduced in evidence a tube, (Crozier's Exhibit 4,) which he testified was made in April, 1905. In this he is corroborated by a witness named Turnbull, a boiler-maker and blacksmith, who assisted in the making of this and similar tubes, and who testified that, in their manufacture, each tube was first crimped or drawn in, a heated ring then placed over it, and both tube and ring heated and welded together. This resulted not only in an increase in the external diameter, but in a material decrease in the internal diameter of the tube.

It is contended by counsel for appellants that the issue, construed in the light of the prior art and of the specifications and claims of the applicants, should be read so as to require that the external and internal reinforcements of the tube should be integral with it. If this contention is correct, "Crozier's Exhibit 4" does not constitute a reduction to practice. While it is true that courts will liberally construe a claim in order to uphold its validity or to protect the rights of a patentee from infringement, it is well settled that such a construction must be consistent with the language employed and not add to or detract from the terms of the claim.

A patent should be construed in a liberal spirit to sustain the just claims of the inventor. This principle is not to be carried so far as to exclude what is in it, or to interpolate anything which it does not contain. (Rubber Co. v. Goodyear, 9 Wall., 788.)

This distinction was also recognized in the case of Cimiotti Unhairing Co. v. American Fur Refining Co., (C. D., 1905, 729; 116 O. G., 1452; 198 U. S., 399,) where the Court said:

It is well settled that a greater degree of liberality and a wider range of equivalents are permitted where the patent is of a pioneer character than when the invention is simply an improvement, may be the last and successful step, in the art theretofore partially developed by other inventors in the same field. Upon this subject it was said by the Court (Westinghouse v. Boyden Power Brake Co., C. D., 1898, 443; 83 O. G., 1067; 170 U. S., 537,) quoted with approval in Singer Co. v. Cramer, (C. D., 1904, 688; 108 O. G., 1869; 192 U. S., 265:) "To what liberality of construction these claims are entitled depends to a certain extent upon the character of the invention, whether it is what is termed in ordinary parlance a 'pioneer.''

Later in the same case, the Court said:

In making his claim the inventor is at liberty to choose his own form of expression, and while the courts may construe the same in view of the specifications and the state of the art, they may not add to or detract from the claim.

Although, in this case, the count of the issue was one of appellee's claims, appellants adopted the same by incorporating it into their application. Had they objected to the language or scope of the claim, they were at liberty to move to dissolve the interference. In White v. Dunbar (C. D., 1886, 494; 37 O. G., 1002; 119 U. S., 47) the Court said:

Some persons seem to suppose that a claim is like a nose of wax which may be turned and twisted in any direction, by merely referring to the specification, so as to make it include something more than, or something different from, what its terms express. The context may, undoubtedly, be resorted to, and often is resorted to, for the purpose of better understanding the meaning of the claim, but not for the purpose of changing it, and making it different from what it is. The claim is a statutory requirement, prescribed for the very purpose of making the patentee define precisely what his invention is; and it is unjust to the public, as well as an evasion of the law, to construe it in a manner different from the plain import of its terms. This has been so often expressed in this Court that it is unnecessary to pursue the subject further.

Appellants introduced several patents in evidence to show the state of the art. After a careful consideration of these patents, the Examiner of Interferences said:

In view of the art as outlined above no reason is seen for giving the claim such a narrow construction even if such a course were permissible.

This statement was affirmed by the other two tribunals of the Patent Office, the Commissioner saying:

There is not in the art relied upon any patent covering the structure claimed and I do not therefore find any sufficient reason for placing a limited construction upon the claim.

We can find no theory upon which to interpolate into the issue the limitation sought by appellants. The count is in clear and unam

biguous language and is capable of but one construction. Where a product can only be made by the particular process described, it is true that such process may be read into the claim, but, in this case, a flue of the character claimed, having one end reduced in internal diameter and increased in external diameter, may be manufactured in several ways. Neither does a consideration of the applications warrant a conclusion that the parties intended to limit their invention to the specific integral structure shown. In some of the claims, the broad idea is sought to be protected, while other claims are drawn to a flue reinforced integrally.

We are, therefore, of the opinion that "Crozier's Exhibit 4" does constitute a reduction to practice, and that appellee, being the first to conceive and the first to reduce to practice, is entitled to judgment of priority.

The decision of the Commissioner of Patents is affirmed, and the clerk will certify these proceedings, as by law required.

[Court of Appeals of the District of Columbia.]

UDELL-PREDOCK MANUFACTURING COMPANY V. THE UDELL WORKS.

Decided December 22, 1908.

140 O. G., 1002; 32 App. D. C., 282.

1. TRADE-MARKS-NAME OF PATENTED ARTICLE.

Between 1870 and 1884 several patents for improvements in step-ladders were issued to C. G. Udell, the predecessor in business of The Udell Works. Udell adopted as his trade-mark the word "Excelsior." The Excelsior ladder embodied features of several, but not of all, of the patents. Six other styles of ladders were manufactured, some of which closely resembled the Excelsior ladder and all of which embodied features of the Udell patents. Held that the word "Excelsior" did not become during the life of the Udell patents the generic designation of ladders manufactured thereunder.

2. SAME-SAME

THAT A TRADE-MARK IS GENERIC NOT TO BE PRESUMED.

While care should be taken lest a monoply be continued beyond the life of a patent through the agency of a trade-name which has come to indicate to the public the patented article, the Patent Office would not be justified in presuming that a trade-mark was generic. In the present case the appellee company has built up a trade in ladders because of the superior excellence of the product and the fair dealings of the company. Manifestly it would be unjust to deny the company the benefit of its reputation unless convinced that to do so would prolong a monopoly.

Mr. F. J. Kent and Mr. J. L. Hopkins for the appellant.

Mr. Chester Bradford and Mr. Arthur M. Hood for the appellee.

ROBB, J.:

This is an appeal by the Udell-Predock Manufacturing Company, which is opposing the registration of the word "Excelsior" to appellee, from a decision of the Commissioner of Patents granting such registration.

From 1870 to 1884 several patents for improvements in step-ladders were issued to Calvin G. Udell, the predecessor of The Udell Works. The patentee commenced the manufacture of step-ladders in Chicago in about 1870, and adopted the word "Excelsior" as his trade-mark. Later the patentee removed to Indianapolis, where the appellee company is now located. The Excelsior ladder, which embodied features of several, but not of all, of the patents, continued to be manufactured. The company also manufactured six other styles of ladders, some of which very closely resembled the one sold under the mark "Excelsior," and all of which embodied features of the Udell patents. M. R. Udell, the organizer of the appellant company and brother of said Calvin G. Udell, was a selling agent for the goods of appellee until about January, 1906, when his connection with the appellee company terminated. Upon the organization of the appellant company in St. Louis it commenced the manufacture and sale of ladders which were exact duplicates of those manufactured by The Udell Works, and which it sold under the same trade-mark applied by The Udell Works.

The sole question here involved is whether the word "Excelsior" became, during the life of the Udell patent, the generic designation of the ladders manufactured under said patents instead of a name exclusively indicating the source or origin of manufacture. There is no evidence in the record upon which to base such a finding. The only evidence of appellant on this point is found in the testimony of said M. R. Udell, and his testimony is in the nature of an opinion and contains no substantive proof. On the other hand, the testimony of appellee tends to show that "Excelsior" was applied to a ladder of superior workmanship and did not in any sense become the generic designation of the output of the company. This contention is materially strengthened by the evidence that the company manufactured and sold six other styles of ladders embodying features of the same patent, which it sold under as many different trade-names. It also appears that several other firms have manufactured ladders embodying these patents, which have been designated under different trade-names.

While care should be taken lest a monopoly be continued beyond the life of a patent through the agency of a trade-name which has come to indicate to the public the patented article, the Patent Office would not be justified in presuming that a trade-mark was generic. In the present case, the appellee company has built up a trade in lad

ders because of the superior excellence of the product and the fair dealings of the company. Manifestly it would be unjust to deny the company the benefit of its reputation unless convinced that to do so would prolong a monopoly.

We see nothing in Singer Manufacturing Co. v. June Manufacturing Co. (C. D., 1896, 687; 75 O. G., 1703; 163 U. S., 169) inconsistent with our conclusion in this case. In that case the word "Singer " was applied to all the sewing-machines manufactured by the company, and all the machines embodied certain fundamental patents controlled by the company. In other words, the name "Singer " represented the whole class of machines and was so understood by the public. Here the word "Excelsior" was only one of several words applied to a patented product, and we think indicated origin and not genus.

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.]

WAYNE COUNTY PRESERVING COMPANY v. THE BURT OLNEY CANNING

COMPANY.

Decided December 22, 1908.

140 O. G., 1003; 32 App. D. C., 279.

1. TRADE-MARKS-SIMILARITY-COLONIAL FIGURES.

A trade-mark for canned fruits consisting of a full-length figure of a colonial military officer, accompanied by the words "Col. Willett," Held so similar to a prior registered mark for the same goods consisting of a bust portrait of Gen. Anthony Wayne in a colonial military uniform as to be likely to cause confusion in trade.

2. SAME-SAME-DOUBT RESOLVED IN FAVOR OF PRIOR REGISTRANT AND USER.

"The property-right in trade-marks is a valuable one, and is entitled to protection from those who would profit by its imitation, and the courts should resolve the doubt, if any exists, in favor of the prior registrant and user in good faith."

Mr. Theodore K. Bryant and Mr. H. P. Denison for the appellant. Mr. A. P. Greeley for the appellee.

VAN ORSDEL, J.:

This is an appeal from the Commissioner of Patents dismissing the opposition of appellant and registering a trade-mark for appellee. The marks here in conflict are used on canned fruits and vegetables. It appears that appellee, on July 22, 1907, filed an application in the Patent Office for the registration of a trade-mark consisting of a full