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appears on page 3 of the “ Trade Mark Record,” April 19, 1893. In this case the plaintiffs used as a trade-mark to designate their goodsa medical preparation-the compound word “Bromo-Caffeine.” This preparation was composed of a bromide, caffeine, and other ingredients. It was contended on behalf of the plaintiffs that the word “bromo” in medical nomenclature had no definite meaning.
The Court said:
This contention we do not think can be sustained. The finding of the court is that the ingrcclients which gave to the plaintiffs' preparation its medicinal properties and produce the effect claimed by its use are bromide of potassium and caffeine, and that bromide of potassium is one of what is known as the class of “bromides." Under these circumstances it is difficult to see why the use of the word “bromo" is not aud was not intended to be descriptive of one of the ingredients in the composition manufactured by the plaintills, and that such is the necessary result of the use of the word is plainly established by the evidence of Dr. Hamilton, one of the witnesses for the plaintiffs.
It appears that this witness testified substantially as follows: that he knew the preparation termed “Bromo-Caffeine;" that he believed it contained bromides and caffeine; that from its name it contained bromide, either free or in combination, because “bromo" is a most commonly used word; that the compound word conveyed to his mind the fact that bromide of some sort and caffeine were combined.
To this testimony the Court said: And we think that is just what the terin was intended to convey to the ordinary purchaser of the article.
The Court further said: It seems to us that it is difficult to get a combination of words which so correctly describes a manufactureil article * * * as the one adopted by the plaintiffs. If these words are not descriptive under this evidence and these findings, it wonld seem to be impossible to imagine a combination of two words which would be descriptive in case the composition contained other ingredients absolutely umnecessary for the production of the medical result.
From this it is obvious that the word "bromo" is not a fauciful term, nor is it a foreign word, as applicant contends. It is it word that has a definite, common, and well-understooil meaning in the English language. “Bromo.Quinine" is therefore a descriptive compound word, whiclı indicates that the article or preparation to which it refers or is applied contains bromine or a bromide of some sort and quinine, and I am of the opinion that under the “Bromo-Caffeine” decision, supra, it is not a valid trade-mark.
Applicai:t, however, contends that this decision is not applicable to his case, because the court held that the word “Bromo-Catteine” actually described the ingredients of the preparation to which it was applierl, whereas in his case the word “Bromo-Quinine” is not descrip. tive of his preparation, which contains no bromide. To this it is only necessary to say that if his preparation contains no bromide to place this word as a trade mark on such a preparation is to use the word in a deceptive sense and is a misrepresentation as to the quality of the goods, and therefore it is not a valid trade-mark. See the familiar cases of “Night Blooming Cereus,” (Phalon v. Wright, 5 Phila., 464;)
Balsam of Wild Cherry," (Fowle v. Spear, 7 Pa. L. J., 176;) “Balm of Thousand Flowers," (Fetridge v. Wells, 13 How. Pr., 385,) and also "White Pine," (ex parte Burke, 26 MS. Dec., 328,) and “Tamarac,” (ex parte Johnson, 50 MS. Dec., 25.)
It follows, therefore, that the action of the Examiner should be, and it is hereby, affirmed.
parte Johne," (ex parte Bulgew: Wells, 13 IPA. L. J., 176;) “R
DAILEY V. JONES.
67 O. G., 1719.
While an inventor who is first to conceive and is reasonably diligent in completing his invention should ordiuarily prevail over a competitor who subsequently conceives but is first to complete his invention, still, if the first to. conceive has means, credit, influence, and friends, and is not bronght to a standstill by anything in the nature of compulsion, but chvoses delay on busiDess grounds, he thus excludes himself from the advantage which tlows from
his prior couception. 2. LACK OF DILIGENCE-WAEN EXCUSABLE.
In the cases where delay in completing an invention is excused there is something of compelling power in the circumstances that produce it.
APPEAL from the Examiuers-in-Chief.
VIRE-ROD REEL Application of Charles I. Dailey filed November 17, 1891, No. 412,239. Application of Elias Jones filed July 30, 1891, No. 401,161.
Messrs. Hall & Fay for Dailey.
Jones appeals from the decision of the Examiners-in-Chief, affirming that of the Examiner of Interferences, awarding priority of invention to Dailey on the following issues :
1. A reel comprising a rotary shaft carrying a plato rigidly mounted thereon, said plate having holes therein, pins movable in said holes, and mechanism actuated by said shaft for moving said pius.
2. A reel comprising a rotary shaft carrying a plato, aniil plate having holes therein, pins movable in said holes, and a centrifugal weight actuated by said shaft for moving said pins.
Elias Jones began work for Carnegie & Co., at Beaver Falls, Pa., on February 15, 1891, as master inechavic. At that time Mr. Dillon, the general superintendent, was building a rod-reel of a new desigu, which turned out a failure. Upon Dillon's request to Jones to get up a new
reel Jones made a study of the matter and concluded that he could make an automatic reel. He conceived the device in question about the middle of March, 1891. He thereupon took an old Judson governor to Maurice Rahilly, the carpenter, who made two circular plates of wood, upon which Jones used two rows of wire wails or pins, which demonstrated to Dillon that the device would work automatically. Besides Dillon and Rahilly the mill foreman, Joseph Wrigley, and boss rollman, Michael O'Donell, saw the model some time in April, 1891, and saw its practical working. Dillon at once ordered Jones to make one reel for trial. In a few days Jones had sketches prepared for working purposes, as well as for the draftsman, wlio, in the latter part of April, 1891, began full drawings.
The original sketch made by Jones and the blue print made under his supervision are in evidence, marked "Jones's Original Sketch” and “Jones's Exhibit Bine Print."
On the 21st of Jiny the draftsman's full drawings were ready, and about the same time Jones liad inen working on the reel. He put the complete machine into the mill luring the third or fourth week in June, 1891. It was run for about six weeks, when four more were built, which were put in place in the mill and started upon the 10th of August, 1891. From that time to the last day of June, 1892, five reels were working, all of them with practical success. Jones's application for a patent was filed July 30, 1891.
Charles L. Dailey, master mechanic for the American Wire Company, at Cleveland, Ohio, conceived this invention in the latter part of May, 1889, and spoke of it to Mr. Fay and Mr. P. L. Day, superintendent of the American Wire Rod Company, and Mr. William Arkless, general manager, about May 28, 1859. He made pencil sketches at different times from May 28, 1889, to March, 1300, but they are lost. fIe made two separate drawings to build the machine from-“Dailey exhibit March 10, 1990, paper drawing,” and “ Dailey exhibit March 10, 1890, musliu tracing”-about March 10, 1890.
It was estimated to cost from $1,000 to $1,500 to pla'e a reel, such as is in interference, in the American Wire Company's Belgian mill.
P. S. Balkwill made patterns for Dailey's reel between March 20, 18.90, and October, 1890, on Dailey's responsibility. For this purpose "Diilej exhibit pattern-naker blue print,” made from "Dailey exhibit March 10, 1990, muslin tracing," was furnished Balkwill. The pit blue priut exhibit was maule in May, 1890, to illustrate the location of three of the Irkless and Day reels, and at the right hand is a pit to receive the foundations for one ot' Duley's reels. The patterns were turned over to the City Foundry Company, as they were completed, which was orlered to make a member of the castings, so that Dailey could do some of the work lipon the real. The castings were ordered ou l'iler's responsibility. The hall not then permission to place the rcel in the Belgian will except at his owii cost. The principal castings were completed by October, 1890, and were taken to the Excelsior Machine Works, whose representative was told that they could do the work as they were able and notify Dailey when it was completed. They stored the castings and did little of the work until after Jones's reel was installed and success ully operated. The machine work was completed in the latter part of 1891, and the finished castings were turned over to Dailey, most of them at one time, partly assembled when deliv. ered; but tbere reinained considerable work to be done after the delivery. The reel was put in place and started temporarily in November, 1891, and was run at different times after November, 1891, to illustrate its operation; but it was only alseel for this purpose. Dailey's applica. tion for a patent was filed November 11, 1891.
It will be seen that in the Jones case his inventive activities covered a period of less than four months, from the middle of March, 1891, to the last week in June following, during which he conceived the device in question, made sketches, caused working drawings, patterns, and castings to be made, and the machine work to be done, and installed the completed machiue in successfuloperation. During this time Dailey did nothing. This was all within the time when Dailey's castings were at the Excelsior Machine Works, where the evident understanding from Dailey's directions was that they could as they were able do the work, and accordingly they stored the castings.
If Dailey had not perfected the invention at the time Jones had done so, but was reasonably diligent in his efforts to do so, then by reason of his earlier conception he will prevail. If, on the other hand, he falters in his diligence, and, for a stronger reason, if there is what amounts to an election of a different course for his supposed advantage, according to the plainest principles of equity, it must not be invoked to the detriment of another innocent party.
Dailey being the tirst to conceive, is this delay justifiable under all the circumstances! It is attempted to excuse it by the fact that the management of the Belgian mill was not willing to make trial of the Dailey juvention until after another invention by Day and Arkless should be tried, and by the fact that the mill itself was undergoing change and extension, and by the fact that as Day and Arkless were in the inauagement of the mill Dailey thought it best not to antagonize them by unduly pressing his owu device. His own regular work was somewhat in arrears at this time on account of a former sickness; but Dailey says he felt warranted to put off the completion of his machine until it should be adopted by the management, but says that had he understood patents as he did later he would have prosecuted it any way.
Doubtless upon the balancing of the advantages of the two courses presented to him Dailey had reason to prefer delay to a quicker prosecution of his work; but the reasons are not such as allow him to keep the advantage of his earlier conception as against another and wholly independeut inventor who, although he enters the field later, stops for nothing until his machine is installed in successful operation. In the cases where delay is excused there is something of compelling power in the circumstances that produce it.
In Smith v. Goodyear Dental Vulcanite Company (C. D., 1877, 171; 11 0. G., 246; 93 U.S., 486, 491) Doctor Cummings, the inventor, was in a condition of extreme poverty-utterly unable to bear the necessary expenses of prosecuting his case, compelled to borrow small sums for the necessaries of life, to make applications to friends for advances to enable him to prosecute his application, offering large interests in the patent when obtained, and never remitted his efforts until he succeeded, and even at the last had not the necessary money to pay the final fee.
In the case before me it appears by the plainest inference that, while the machine was somewhat costly, Dailey had means, credit, iufluence, and friends, and that he was not brought to a standstill by anything in the nature of compulsion; but the cost of the machine does not enter into the case upon the question of diligence, for substantially all the money obligations had beeu incurred and closed with the order for the final machine work prior to this year of fatal inactivity. Delay as the chosen alternative to activity, with advantages which, on the whole, are preferred on business grounds, excludes the claim to such prosecution of a conception to successful reduction to practice as enables its author to retain his precedence in conception.
Dailey's sickness, which is also urged in extenuation of his delays, was earlier than the period herein referred to, and in addition it is noted that it was during his sickness that he made most rapid progress with his inveution.
Judgment of priority is awarded to Jones, and the decisions of the Examiner of Interferences and of the Examiners-in-Chief are reversed.
SHELLABERGER v. SOMMER, SOMMER, AND SOMMER.
Decided June 16, 1894.
68 O. G., 533.
INTERFERENCE-WIRE FENCE-PRIORITY_INSUFFICIENCY of Proor.
Where conception and reduction to practice on the part of one of the contestants is established beyond doubt to have been at a certain date, and when his opponent fails to produce a single sketch or exhibit of the numorous sketches and specimens alleged by him to have been made earlier than the said certain date, without any serious attempt to recover them and with their loss insuffi. ciently accounted for, and where certain of his claims of earlier production are found to be disproved and others improbable, Held that there is a failure of proof that the invention existed prior to the date established by the firstmentioned contestant. APPEAL from the Examiners-in-Chief.