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and I find that he was aware of its contents before signing in its final form and as received in evidence, notwithstanding his contrary statement.
The series of material facts is: first, the conversation at Prentice's house, where Prentice discloser to Greenfield much of this invention, about December, 1888, and showed his model and samples; second, the making of the Brooklyn die according to Greentield's directions in the fall of 1889, under the stimulus of the need for such a machine growing out of the Shoreham Hotel experience, which machine resembled Prentice's invention, and differed from it, but which was impractical; third, that therenpon · Greenfield sought Prentice anew and caused him to be engaged in the factory, under his direction, to make the machine in question, and after more than a year's delay, during which Preutive was ready and competent to build the machine, the machine was built by Prentice.
The narration of Greenfield respecting the sketch upon the pad at Prentice's bench in Prentice's presence, in the absence of the sketch and with Greenfield unable to reproduce it, and denial of Prentice, create a situation imder all the circumstances in which there is no preponderance of testimony in favor of Greenfield. Every machine built is traceable back to Prentice; even the Kennedy & Diss die, as described, bears the outward resemblance to Prentice's exhibit model, and its internal deficiencies, on account of which it failed, were departures or omissions from that model, a circumstance which corroborates Prentice in his statement that Greenfield had seeu the Prentice exhibit model, but had uot examined its interior construction.
On the other hand, there is no fact in the record proved by a fair preponderance of testimony which is consistent with Greenfield's claim that the origin of this invention was in his own conception. But at many points the record suggests that what is argued to be original conception of Greenfield is mere recollection of the model and partial disclosures of Prentice six months before.
The careful analysis of the record by the Examiners-in-Chief upon other points renders their further examination unnecessary. It is considered that the machine was the embodiment of Prentice's original ideas and not of Greenfield's.
Judgment of originality is awarded to Prentice and the decision of the Examiners-in-Chief is affirmed.
10693 PAT - 5
COLHOUN v. HODGSON.
Decided April 5, 1894.
67 0.G., 1329. 1. INTERFERENCE-THE FIRST TO ConceIVE NEGLIGENT—THE SECOND TO Con
CEIVE AND FIRST TO REDUCE TO PRACTICE IS THE FIRST INVENTOR, Where the first to conceive is negligent in reducing to practice, and the sec. ond to conceive is so diligent as to put the invention into practice before the date of the reduction to practice by the first to conceive, Held, under such facts,
that the second to conceive is the first inventor, 2. SAME-EXPIRED CAVEAT.
Evidence in support of an application assigned to, filed in behalf of, and all expense incident to its prosecution borne by the defeated party to a former interference, for an invention disclosed in an expired caveat of the same inventor, but not reduced to practice until after the reduction by the adverse party to the interference, should be closely scrutinized, and when found to be weak or incertain where it might have been strong and impregnable should be resolved against the party in interest. APPEAL from Examiners-in-Chief.
TIN CANS. Application of Charles M. Colhoun filed September 18, 1891, No. 107,360. Application of John G. Hodgson filed February 3, 1890, No. 339,042.
Messrs. Price & Steuart for Colloun.
Hodgson appeals from the decision of the Examiners-in-Chief affirm. ing the decision of the Examiner of Interferences awarding priority of invention to Colhoun on the following issue:
1. A piece of tin adapted to be united by soldering to another piece and furnished with a pocket corresponding in position with the line of the intended joint, said pocket containing sufficient soliler for forming the joint, united or combined by heat ot melting with the tin coating to that piece only which contains said pocket.
2 A metal can having an opening in one of the heads, a groove forined around the optoning, and a coating of solder melted and coinbined with the tin surface coating ið said groove to receive the eilgo of the cap or cover and be united therewith by saldering in the sealing of the can.
Colhoun's caveat, filed October 18, 1886, is held to disclose the inven. tion in issue, for, although the language of the caveat and of the brief for Hodgson are quite diverse, the caveat can mean nothing less than the fusible union between the solder in the groove and the tin coating of the groove.
Colhoun says in his caveat that his invention consists in coating the groove of the lid of the can with solder, which would ordinarily be understood to inean that there was a fusible wniou between the soller and the can, and at the end he says it is his intention that the solder
shall be applied to the can when it is made. The method of uniting the cap and solder by the conduction of heat through the edge of the cap implies the same thing.
But while Colhoun at the time of filing his caveat had a full conception of the improvement there is nothing in the record to explain the statement of the caveat that he was then engaged in making experiments for the purpose of perfecting his improved process preparatory to applying for Letters Patent thereon, nor to explain the further state. ment therein that he then desired further timne to inature the same, aud praying for protection of his right until he should mature his invention. This is not conclusive evidence that Colhoun was then, as he says, making experiments for the purpose of perfecting his invention, nor is it conclusive against Colhoun upon the question whether his invention was then complete, for it may happen, and often does happen, that a caveat is filed after the invention as such is complete. The caveat, however, as was held in Johnson v. Root, (1 Fishi. P. C., 351, 367,) is evidence, and unexplained goes to show with more or less force that Colhoun was at that point of progress toward making an invention which the caveat describes. This statement, indisputable as to date, comes into comparison with Colhoun's statement that he publicly used the improvement in the canning season at his establishinent in West River, Md., in September, 18810, applying it to three or four hundred cases of calls, and is in conflict with such statement, for if Colhoun used it in the year he says and to the extent and in the manner he says the invention was complete beyond question at the very time he says it was incomplete. In itself the invention is simple and understandable. To workmen, and even to observers at the works, it was obviously in practice in the season of 1886 or else not, and accordingly complete before the caveat was executed or else not complete for want of reduction to prac. tice until the next seasou.
The Colhoun record is weak in fixing dates, whereas it might have been made not only strong, but inpregnable. If all those who are namell saw the improvement, and the cans were put into cases and sold and shipped to different parts of the State, there was proof easily access. ible of shipping-receipts, books of accounts, and memoranda of sales that would tis the year beyond civil. Moreover, Colhoun sold out bis business after using the improveinent two seasons, and could therefore indisputably fix the date of such use by the date of the sale of his business and his own removal to another State.
Viller, the only other witness upon the question of time, fixes no date, nor is any referred to, except in a leading question which assumed that he was in the employ of Murray, Colhoun & Co. in 1886, and in his case it appears in the cross-examination tbat he was also in their employ in 1887.
Statements that an ordinary event took place in a given year, four or tive years removed, without a showing that the event was related to some other of which the date may be fixed, such statements being for aught that appears mere unaided and unverified recollection, cannot be given much weight. No other basis is furnished for Colhoun's claim that he used this invention as early as 1886, and if he did not use it until 1887, Hodgson's later conception, but prompt and earlier reduction to practice, gives the case to Hodgson.
Now it is necessary to scrutinize this record upon the question of the year of the reduction to practice, for Colhoun's application was filed only after a foriner interference between Holgsoul's present application and Letters Patent No. 420,110, granted to Robert T. Smith, January 28, 1890, was (letermined in Hodgson's favor. After Smith's defeat Smith bought Colhoun's alleged invention, caused this application for patent to be filed, and assumed the expense incident to it. The langnage of Colhoun's claim is identical with that of the claims of Hodgsou, with which they are in interference.
Smitli, who is the real party in this interference as well as in tlie former one, knew beforehand Hodgson's date and his record. It is the duty of the trier to give the Colhow record criti«ism upon this point of time, and upon it full review, and not unwindful that it is weak where it might have been strong, it is thonght that Colhoun has not sustained his contention by sufficient proof; that he is in error when he states that it was in the canning season of 1886 that he made use of this improvement, and that it was in the year 1887 that this was done, and not earlier. This is no more than holding that Colhoun did not recluce liis alleged invention to practice and put it into public use before his caveat asserts that he desires further time to mature it.
Again, if Colhoun used the improvement in the way and to the extent he says he did, it was a public use, and yet in his oath of August 29, 1891, attached to his application fileil in September, 1891, he swears that the invention has not to his knowlerlge been in public use or on sale for more than two years prior to the application.
Thodgson conceived the invention as early ils December 1, 1836, and is therefore not the first to cobreive. But he reduced it to practice at about the same time and before Colhou. Upon the decision of the former interference in his favor the case was reinanded to the Primary Examiner for the purpose of determining the qestion of !lolason's abandonment, and upon consideration a former rejection upon that growd was waivell and the point thus decided in favor of Ilodgson. It must be considereil, therefore, that although llodgson was not the first to conceive, yet when he did conceive this improvement lie promptly and diligently reduced it to practice and has never abandoned it.
On the other hand, Colhoun three times states in his record that he abandoned this improvement, and that statement is reinforced by the fact that in 1888 or 1839 he went out of the canning business,
Upon this record priority is awarded to Hodgson, and the decision
of the Examiner of Interferences and of the Examiners-in-Chief is reversed.
But this record shows that as early as the canning season of 1887 the invention was in public use at West River, Md., by Colhoun and his associates, and Hodgson's case must therefore be remanded to the Primary Examiner to determine the question whether the statutory bar does not exist of two years public use prior to his application of February 3, 1890.
EX PARTE GROVE.
Decided May 25, 1894.
67 0.G., 1447. TRADE-MARK“BROMO-QUININE" — DESCRIPTION — MISREPRESENTATION-REGIS
TRATION REFUSED. “Bromo-Quinine" is a compound word descriptive of the preparation to which it is applied, indicating that it contains bromnine or a bromide and quinine. If it does not contain bromide, the description is false, and in either case the term is not a valid trade-mark.
TRADE-MARK FOR REMEDIES FOR COUGAS, COLDS, ETO. Application of Edwin W. Grove filed December 21, 1893, No. 45,669. Messrs. Higdon & Hiydon & Longan for the applicant. FISHER, Assistant Commissioner:
This is a petition taken from the action of the Examiner refusing to register as a trade-mark for cold, cough, and headache remedies the compound word “ Bromo-Quinine."
The petitioner prays, firstthat the Examiner be instructed as to the meaning in the English language of the word “ bromo,” and, secondthat the phrase “ Bromo-Quinino" may under the law be adopted as a legal trademark.
Turning to the “Century Dictionary," I find the words, “ broino. chloralum,” “ bromoform," “bromnogelatin,” and “bromo-iodized," which are names for or descriptive of substances one of the component parts of which is a bromide or which contains bromine as one of the constituent clements. It thus appears that “ bromo ” when compounded with another word signifies that bromine or a bromide is a constituent part of a chemical mixture or compound; but the meaning of the word “bromo” and whether or not it is an English word were fully settled by the decision of the New York Supreme Court in the case of Keasbey et al. v. Brooklyn Chemical Works, which decision