that the case was reopened for the consideration of new claims and that a further amendment containing such claims was properly refused entry. Ex parte Wright, 134. 2. SHOWING INSUFFICIENT.-Where the claims in a case were properly finally rejected and it was thereafter sought to amend and as a reason for not amending earlier it was alleged that the applicant, who was a foreigner, was not sufficiently familiar with the patent practice of the United States to fully appreciate the scope of the claims originally presented and that the attorney was not informed until after the final rejection that the subject-matter of the proposed claims was an important part of the invention, Held that the showing does not warrant reopening the case for further prosecution before the Examiner. F parte Seisser, 152. REPAIR AND RECONSTRUCTION. See Infringement, 2. RES ADJUDICATA. See Authority of the Commissioner of Patents, 3; Interference, 15; Trade-Marks, 36, 66. RESPONSIVE ACTION BY APPLICANT. See Abandonment of Applications; Amendment, 1, 2, 4. REVIVAL OF ABANDONED APPLICATIONS. See Abandonment of Appli cations, 7. RIGHT OF APPEAL. See Mandamus, 2; Motion to Dissolve Interference, 14, 18; Trade-Marks, 43. RIGHT TO MAKE CLAIM. See Claims, 4, 5; Interference, 9, 10, 11, 14, 20, 21, 25, 28, 31, 32, 33, 38, 39; Motion to Dissolve Interference, 2, 16, 17; Motion to Reopen Interference to Take Testimony, 3; Reissues, 2; Supervisory Authority of the Commissioner of Patents. RIGHT TO PATENT. See Concealment of Invention. RULES OF PRACTICE OF THE UNITED STATES PATENT OFFICE. FAILURE TO COMPLY-IGNORANCE NO EXCUSE.-That a party had not the means to employ counsel and was ignorant of the rules of practice is not a sufficient excuse for waiving the requirements thereof. Mattice v. Langworthy, 38. SIGNATURE TO AMENDMENTS. See Abandonment of Applications, 5, 6. SIMILARITY OF MARKS. See Trade-Marks, 7, 10, 27, 35, 41, 42, 59, 60, 67, 68, 73, 75, 76, 81, 98, 99, 102, 103, 105, 108. SPECIFICATIONS. See Claims, 3, 4, 5; Examination of Applications, 4; Interference, 31; Reissues, 2, 3. 1. SUFFICIENCY OF DISCLOSURE.-In claiming a patent for the discovery of a useful result in any art, machine, manufacture, or composition of matter by the use of certain means the application must specify "the means he uses in a manner so full and exact, that any one skilled in the science to which it appertains, can, by using the means he specifies, without any addition to, or subtraction from them, produce precisely the result he describes." (O'Reilly v. Morse, 15 How., 62, 119.) * In re Blackmore, 325. 2. SUFFICIENCY OF DESCRIPTION.-The specification of the Golding patent, No. 527,242, for a process of making open metal-work Held sufficient to enable one skilled in the art to practice the invention. ** The Be panded Metal Company et al. v. Bradford et al., and The General Fireproofing Company v. The Expanded Metal Company, 521. 8. DIFFERENCE IN TERMINOLOGY.-Where the interference involves a structure creating a "main and a "leakage" flux, it is immaterial for the purposes of the interference that the flux described as the "main flux by one party is called the "leakage-flux" by the other, and vice versa, in their respective specifications. Pratt v. de Ferranti and Hamilton, 202. STATE OF THE ART. See Construction of Specifications and Patents, 2, 3; Invention, 7, 8, 9, 10, 11; New Matter; Patentability, 4, 6, 7; Reduction to Practice, 5, 6. STATE STATUTES. See Trade-Marks, 39, 40. STIPULATION. See Testimony, 7. SUBSTITUTE OATH. See Oath. SUCCESSORS TO REGISTRANT. See Trade-Marks, 55, 56. SUFFICIENCY OF ACTION. See Abandonment of Applications, 1, 2, 4. SUFFICIENCY OF EVIDENCE. 1. UNDER RULE 96-EXTENSION OF TIME.-Where, in response to the suggestion of claims under Rule 98, the applicant shows that it is practically impossible for him to comply with the suggestion within the time specified and requests a reasonable extension thereof, such request should be granted. Ex parte Hellmund, 62. 2. REJECTION OF CLAIMS ON GROUND OF IMPLIED DISCLAIMER-APPEAL OB PETITION.-Where an applicant makes claims suggested under Rule 96 after the time set and the Examiner rejects them on the ground of implied disclaimer, ordinarily appeal from such rejection must be to the Examiners-in-Chief; but where the Examiner sets such a short period as to make it practically impossible for the applicant to file the claims in time and he refuses to extend such time the action will be reviewed by the Commissioner on petition. Id. SUITS FOR INFRINGEMENT. Trade-Marks, 45. See Access to Abandoned Applications; 1. PRIORITY OF INVENTION-EFFECT OF DECISION IN INTERFERENCE PROCEEDING.-Where in a suit for infringement of a patent which was granted after an interference proceeding in the Patent Office the only defense set up is that the other party to the interference was the prior inventor, the decision of the Patent Office tribunals and the Court of Appeals of the District of Columbia on the question of fact involved is entitled to great weight, if it is not absolutely controlling. Automatic Weighing Machine Company v. Pneumatic Scale Corporation, Limited, 498. 2. EVIDENCE-FORMER SUIT-PRIVIES.-The mere fact that defendants in a suit for infringement of a patent contributed to the defense in a prior suit on the same patent against other parties, it not being shown that the present defendants had the right to intermeddle in any way in the conduct of that case, does not render them privies to such prior suit, and the testimony of a witness therein, since deceased, is inadmissible against them to establish infringement. **Rumford Chemical Works v. Hygienic Chemical Company of New Jersey; Hygienic Chemical Company of New York et al. v. Rumford Chemical Works, 564. SUITS UNDER SECTION 4915, REVISED STATUTES. See Trade-Marks, 106. SUPERVISORY AUTHORITY OF THE COMMISSIONER OF PATENTS. See Authority of the Commissioner of Patents, 1; Interference, 35, 40. INTERFERENCE.-The supervisory authority of the Commissioner will not be exercised to determine whether one of the parties to the interference has a right to make the claims in issue where it appears that a motion to dissolve on that ground has been transmitted to the Primary Examiner and is awaiting action on his part. Thiem v. Bowen, 102. SUPPRESSION OF TESTIMONY. See Interference, 5. See Decisions of the Court SUPREME COURT OF THE UNITED STATES. of Appeals of the District of Columbia. SURPRISE. See Motion to Dissolve Interference, 12; Testimony, 1. SURREBUTTAL TESTIMONY. See Testimony, 1. SUSPENSION OF PROCEEDINGS. See Trade-Marks, 45. TECHNICAL MARK. See Trade-Marks, 75, 76, 92. TEN-YEARS CLAUSE. See Trade-Marks, 2, 75, 102. TERMINOLOGY. See Claims, 6; Motion to Dissolve Interference, 15, 17; Perjury, 2; Specifications, 3. TERM OF PATENT. 1. DURATION OF PATENT-LIMITATION BY FOREIGN PATENT-PROCESS AND APPARATUS.-A claim for a process and a claim for an apparatus by which the process is performed are distinct inventions, and the United States patent for one does not expire, under section 4887, Revised Statutes, by reason of the expiration of a foreign patent for the other. **Leeds & Catlin Company v. Victor Talking Machine Company and United States Gramophone Company, 536. 2. SAME-SAME-COMBINATION AND ELEMENTS THEREOF.-A combination of elements is an invention distinct from one of the elements thereof, and a patent containing claims for both does not expire, as to the combination claim, by reason of the expiration of a foreign patent covering one of the elements. **Id. 3. SAME-SAME-FAILURE TO PAY TAXES.-Under section 4887, Revised Statutes, a United States patent is not limited in its term by reason of the expiration of a prior Canadian patent before the end of the term for which it was granted by failure to pay the annual taxes thereon. (Pohl v. Anchor Brewing Co., C. D., 1890, 275; 51 O. G., 156; 134 U. 8. 381.) **Id. TESTIMONY. See Abandonment of Invention, 5; First and Original Inventor; Interference, 1, 2, 3, 5, 6, 21, 26, 29, 36; Joint Applicants; Motion to Dissolve Interference, 11; Motion to Reopen Interference to Take Testi mony; Priority of Invention 5; Public Use Proceedings; Reduction to Practice, 8; Suits for Infringement, 2; Trade-Marks, 47, 48, 94. 1. INTERFERENCE-EVIDENCE-Sur-SurREBUTTAL. 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. Ruthven v. Christensen, 1. 2. SAME-SAME-TESTS.-G. built a furnace and made certain tests thereof to show that the furnace described in M.'s application was inoperative. M. was not present or represented at the tests, and the furnace was dismantled before he had an opportunity to inspect it. While this did not render the testimony incompetent, it is of great importance in determining the weight to be given to the evidence relating to the tests. *Mark v. Greenawalt, 288. 3. SAME-SAME-SAME.-A party deeply interested in showing that his rival's device will not operate or accomplish the object claimed for it who secretly tests the same with the aid of an expert who had previously testified to the opinion that it would not operate must necessarily rest under the burden of showing, with great certainty, that they conformed strictly with all the requirements of the description and in good faith and with great care took all the steps necessary and important to obtain fair and accurate results. *Id. 4. INCLUSION OF Irrelevant and IMMATERIAL MATTER." Before proceeding to a consideration of the case we deem it proper to express our disapprobation of the conduct of counsel in filling the record with immaterial, irrelevant, and useless matter. This practice, which is altogether too general in patent cases, entails needless expense upon clients and much needless labor upon the tribunals of the Patent Office as well as this court, and should be discontinued. Objections can, and should, be stated in a few words and 'vain repetition' of testimony avoided." *Conner v. Dean, 370. 5. INTERFERENCE-PRINTING TESTIMONY-INABILITY TO PRINT MUST BE SHOWN. A Corporation will not be relieved from the necessity of printing its testimony in an interference because of a showing that it is financially unable to do so where it is not shown that the parties interested who would be the real beneficiaries of any decision dispensing with printing are also unable to furnish the requisite amount of money. McManus v. Hammer, 97. 6. SAME-SAME-IRRELEVANT AND IMMATERIAL TESTIMONY.-A motion to dispense with the printing of part of the record is not the proper way to take advantage of the objection that certain parts thereof are irrelevant and immaterial and that the record was unduly enlarged by improper cross-examination. Id. 7. STIPULATION IN LIEU OF TESTIMONY.-The filing of stipulations in uncertain and indefinite language which require 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. Shiner v. Edison, 174. TESTS. See Interference, 1; Public Use and Sale; Reduction to Practice, 2, 5, 7, 8; Testimony, 2. 3. TITLE.TO PATENT. See Assignment; Attorneys. TRADE-MARKS. 1. "CELERY ADE" FOR BEVERAGES-DESCRIPTIVE.-The words "Celery Ade" as a trade-mark for beverages and sirups therefor Held to be merely descriptive in the sense contemplated by section 5 of the Trade-Mark Act of 1905, and therefore not registrable. Ex parte Shannon, Ward & Company, 2. 2. INTERFERENCE-APPLICANt and RegistrANT—“ TEN-YEARS" CLAUSE.-The registration of a trade-mark is prima facie evidence of ownership, and the presumption is that the use of such mark has continued. In an interference between an applicant and a registrant involving a mark registrable only under the "ten-years" clause of the Trade-Mark Act of 1905 applicant was properly Held not entitled to registration in the absence of testimony showing that the registrant had not used the mark during the ten years next preceding the passage of that act. Hezel Milling Company v. Weidler, 5. 3. 44 UNITED STATES STANDARD FOR FLOUR-DECEPTIVE-NOT REGISTRABLE— The words "United States Standard" Held not entitled to registration, as such registration would tend to indicate that the United States Government was guaranteeing that the flour on which the mark was placed was up to the standard required by the Pure Food and Drugs Act. Id. 4. PICTURE AND FACSIMILE-Signature of GROVER CLEVELAnd for Cigars.— The picture and facsimille-signature of Grover Cleveland Held not registrable as a trade-mark for cigars. Ex parte The Banner Cigar Manufacturing Company, 9. 5. SAME-PUBLIC POLICY.-To use the names of ex-Presidents of the United States as trade-marks tends to detract from the dignity of the high office which they have held, and for that reason it is believed that it is against public policy for the Patent Office to encourage such use of their names by allowing them to be registered as trade-marks. Id. 6. "WEAREASE," FOR SHOES-DESCRIPTIVE.-The word "Wearease" as a trade-mark for shoes Held to be descriptive, and therefore not registrable. Ex parte C. S. Sisson Company, 10. 7. SIMILARITY.-There is conflict between a mark consisting of the word "Quaker" with the picture of a woman wearing a cap and apron and carrying a tray with a cup on it and a mark consisting of the picture of a woman wearing a cap and apron of the same style and carrying a tray with cups upon it which may be at once recognized as that of a Quaker lady. Walter Baker & Company, Limited, v. Harrison, 284. 8. CLASS OF GOODS-COFFEE AND COCOA.-According to general knowledge and observation coffee and cocoa are goods of the same descriptive properties, and so far as there is any question of fact involved in this point it should not be decided on demurrer, but should be left for submission of proof. * Id. 9. SAME-SAME.-Things may be said to possess the same descriptive properties when they can be applied to the same general use. Coffee and cocoa when used as beverages are at once associated as belonging to the class of beverages in general domestic use. They belong to the class of beverages universally used on the table and sold in prepared packages for that purpose. Id. 10. SAME-REGISTRATION.—A mark should be denied not only when used on goods of the same descriptive properties as a similar registered mark, but when used on goods belonging to the same general class. * Id. 11. OPPOSITION-BASED ON USE OF DESCRIPTIVE WORD AS A TRADE-NAME.Application having been made for the registration of a mark containing a descriptive word, it was permissible for a party who claimed to have used that word as a trade-name to file an opposition to the registration of the mark. * Johnson v. Brandau, 298. 12. DESCRIPTIVE WORD SHOWN IN DRAWING-ESSENTIAL FEATURE.—Applicant having shown a mark consisting of the picture of an ass with a descriptive word written thereacross, he made all essential, and the mark must be treated as an entirety. * Id. 13. SAME-PRACTICE.-In such a case registration should be denied as claimed. * Id. 14. GOODS OF SAME DESCRIPTIVE PROPERTIES.-Two trade-marks may be said to be appropriated to merchandise of the same descriptive properties in the sense meant by the statute when the general and essential characteristics are the same, the test being whether there is such sameness in the distinguishing characteristics of the goods as to be likely to mislead the public. * Phoenix Paint & Varnish Company v. John T. Lewis & Bros. Company, 303. 15. SAME-PASTE PAINTS AND READY-MIXED PAINTS.-Paste paints and ready-mixed paints are goods of the same descriptive properties within the meaning of the Trade-Mark Act. Id. 16. INTERFERENCE-KNOWLEDGE BY LATER TO ADOPT OF PRIOR USE BY ANOTHER PARTY-PRESUMPTION.-The purpose of the act being to prevent and not to promote fraud and mistake, we would not feel inclined, even in a doubtful case, to grant registration to a claimant where it appeared, as here, that when he adopted the mark he knew of its prior |