vention to practice, Wicks has not made such a showing as would over. throw his patent, which is, prima facie, valid; but when this is supplemented by evidence of the completion of the invention, and its reduc. tion to practice, the abortive attempts made by Wicks are wholly incom. petent to overthrow his title to priority.

The decision of the Board is accordingly reversed.

COGGIN, KIDDER & CO.

Trade-Mark.

O. G., vol. xi, p. 1169.

APPEAL FROM THE DECISION OF THE EXAMINER OF TRADE-MARKS IN THE MATTER OF THE APPLICATION OF CROGGIN, KIDDER & CO., FOR THE REGISTRATION OF A TRADE-MARK.—Decided February 21, 1876. Registration denied a trade-mark which, although not absolutely identical with, was so close in its resemblance to another in long use as to readily mislead the public. The addition of an arbitrary symbol to an old trade-mark may not amount to a sufficient difference to warrant registration.

ELLIS SPEAR, Acting Commissioner:

It appears from the records in the case, that the word "Haxall” is the trade-mark, and has been for many years, of the firm of Haxall, Crenshaw & Co. This being the case, I think that the trade-mark sought to be registered by these applicants would be so near that of another firm as to mislead the public. Although in this instance, with the two marks or designs side by side, any one would readily perceive the difference, yet a purchaser having heard of "Haxall flour," and looking for that article in the market, might easily mistake the flour to which this mark is attached for that.

Nor do I think that the addition of the Maltese cross would make any difference. If it means anything, if there be any object whatever in using the term "Haxall," it must be as a distinction of the flour as Пaxall flour; but whatever merit there may be in the article so named and known, the original proprietors of that mark are entitled to it.

In the case of the Amoskeag Manafacturing Co. vs. Spear (Cox American Trade-Mark Cases, p. 87), the defendants in that case did not use the whole trade-mark of the plaintiffs, and, in fact, made greater change than has been made in the present case, but yet were held to have infringed upon the rights of the plaintiff.

In the case of Clark vs. Clark, id., p. 206, the trade-mark of the plaintiffs was omitted in part only, the names of the persons and places being changed in the mark used by the defendants, but the difference was held by the court to be merely colorable.

In the case of the Brooklyn White Lead Co. vs. Masury, 25 Barb., p. 416, it was decided that a mere change of a word could not be sufficient to constitute a new trade-mark.

In my judgment the leading word in the present application would be that to which the attention of the public is called, and, although not designed, perhaps, to do so, might mislead them and give the impression that the article sold was the same as that sold by Haxall, Crenshaw & Co.

For these reasons, I must sustain the decision of the Examiner refusing the registration.

WITHINGTON vs. LOCKE.

Interference.

O. G., vol. xi, p. 417.

APPEAL FROM THE DECISION OF THE BOARD OF EXAMINERS-IN-CHIEF IN THE MATTER OF THE INTERFERENCE BETWEEN the applICATION OF CHARLES B. WITHINGTON, FILED MARCH 5, 1874, AND THE PATENT GRANTED TO SYLVANUS D. LOCKE, NOVEMBER 28, 1871, FOR "IMPROVEMENT IN AUTOMATIC BINDERS FOR HARVESTERS."-Decided February 21, 1877.

It is not necessary to an interference that the combination of each party should consist of elements identically the same in form so long as the combinations as entireties are the equivalents in arrangement and mode of operation.

An applicant for a patent is the prior inventor, as against a patentee, if he was the first to clearly originate the invention and dilligent in reducing it to practice.

Although an interference is not the same in nature as an action for iufringement, or a suit in equity to uphold or defeat a patent, the character of proof required to show the fact of invention is the same.

Sketches, drawings, models, oral and written descriptions, and experiments, all constitute evidence to be considered in determining the question of priority of invention. BALDWIN, HOPKINS, and PEYTON, for Withington.

R. D. O. SMITH and HILL & ELLSWORTH, for Locke.

DOOLITTLE, Assistant Commissioner:

Lengthy discussions have been had, and several decisions made, upon the issue in this case, which I deem unnecessary to review in detail. Withington, the applicant, has a claim for a combination of certain elements, which combination was declared by the Primary Examiner to be shown and described, but not claimed in the patent of Locke. This combination, regarded as a unit, comprises the sole matter in dispute. It is not necessary to an interference that the combination of each party should consist of elements identically the same in form so long as the combinations as entireties are the equivalents in arrangement and mode of operation.

In accordance with this principle it has been held that a patented machine frequently has a broader scope than the particular form of the machine described as the form used by the patentee. Blake vs. Rawson (6 Fisher, 74).

The claim of Withington for the combination in controversy is as follows:

The rotating spring-tension drum S, in combination with a wire-reel, a wire-carrying arm, K3, and a binding-head, G1, said drum being intermediate between the reel and binding-head, substantially as and for the purpose herein described.

Now, there are differences in some of these elements in the combinations of the two parties; but the scope of the above claim includes the combination described by Locke, as well as any other combination having the same mode of operation, and effecting the same result. The nature of the combination, and the scope of the claim embodying it, are clearly set forth by the Primary Examiner, as follows:

It will be observed that the relation of these parts is such that the wire is drawn from the supply-reel through and around the tension device by the wire carrying arm, which places the band around the sheaf in the operation of binding. It will also be observed that the device here called a "spring-tension drum, S," serves both as a tension device proper, and as a take-up for the slack periodically occasioned in the binding wire by the movements of the wire-carrying arms.

*

It will be observed, further, that this device is separate and distinct from the reel or spool which carries the supply of wire, that the tension is applied directly to the wire and not to the reel, and that the slack is taken up solely by the tension device, and without any retrograde movement of the reel. The new mode of operation and the new result above referred to are to be found in both machines; they spring from substantially the same combination in each machine-a combination consisting of the same essential elements, arranged and co-operating in substantially the same way, and to effect the same purpose.

In the above light of the nature and operation of the combination in question, and the doctrine of equivalents as applied to combinations generally, the issue in this case must be considered and determined as was substantially held by the Commissioner in his decision of September 20, 1876.

Upon Withingtou rests the burden of proof. His application was filed March 5, 1874. Locke's application was filed October 5, 1871, and his patent granted November 28, 1871. Withington, therefore, should clearly show that he was not only the first to originate this invention, and diligent in reducing the same to practice, but that, in view of the length of time prior to this application that the patent of Locke was granted, he had not, by acquiescence, consent, or allowance, abandoned his invention to the public.

Withington's occupation formerly was that of a watchmaker and jeweler. His attention, he says, was directed to the subject of binding grain by machinery as early as 1860; and he has since obtained several patents relating to harvesters and grain-binders. It appears that his first efforts to produce a wire-binding machine were in 1865.

In 1867 he discovered a spool-tension device; but it is not pretended that it was combined in the manner or adequate to the work now claimed His efforts were continued in this direction in 1868 and 1869, and in the latter year he invented a tension device which was substantially a part of the reel or supply-spool, the spring designed to take up the slack being attached thereto.

An application for a patent embracing this device was filed in this Office in September, 1869. December 29, 1869, Withington wrote to his attorneys in New York inclosing a model of an intermediate tension device, which is substantially the device incorporated in the present

combination. In that letter he describes the tension as "acting upon the wire or thread between the spool or reel upon which it is wound, and the binding-head and wire-carrying arms, or other devices using said wire or thread," and further describes the manner in which he proposes to adapt the same to the general mechanism of the binder. He desired his attorneys to introduce the same into his application of September 29. The letter also states that he had in view the latter-constructed device at the time he forwarded the model to accompany this application, which was September 6, 1869.

The letter, corroborated by evidence showing that this model was completed at least a week before the writing of said letter, evinces a clear conception and understanding by Withington of the invention in dispute as early at least as the middle of December, 1869, although he insists that he had the idea fully developed months before.

It not being possible under the Office rules to introduce the device into the application of 1869, Withington, January 25, 1870, filed an application for this tension device, broadly, to be used in grain-binders, sewing. machines, &c. He subsequently amended the application, and restricted it to harvesters, but, failing therein to show by drawings or model its connection with a harvester, the claim was refused. This action was taken by the Office January 16, 1871.

Before this, however, in the spring of 1870, he had embodied the device in a binder, and used it experimentally in a shop at Janesville, Wis. From all the evidence, I am of opinion that this experiment was not earlier than May of that year. This machine was then taken apart, a new one built embodying the tension device, and used in the harvest of 1870, several acres of grain being cut with it. It appears to have been also displayed at a county fair at Cincinnati in the same fall. Subsequent to this, and almost constantly up to the time of this interference, Withington has been busy in efforts to adapt the device in controversy to harvesters, and introduce it upon the market. Not that he has found difficulty in making this invention work, but that he has met with many obstacles in perfecting the other parts of harvesting-machines, and endeavoring to persuade manufacturers to adopt this and other devices of his in connection with machines of their own.

In March, 1874, he filed his present application. He also attempted about the same time to renew his former application of 1870, but it was held to have been abandoned by operation of sec. 32, act of 1870.

Turning now to Locke's testimony, it is not clear when he conceived this invention. That he had been striving to make a successful tension device for years previous to his invention of the present one there is no doubt.

In 1864 he invented an intermediate take-up, consisting "of a small pulley or sheave on the end of a spring located between the spool bearing the wire and the wire-carrying arm." This spring-arm was a strip

of bent or twisted iron or steel, had a very limited movement, and, in fact, was not a tension device at all in the sense called for by this issue. A similar experiment was made in 1869, in which the pivoted arm was actuated by a spring located intermediately between the spool and wire-carrying arm and binder-head. In 1867, he invented what he calls a "spool take-up," which in construction was substantially the same as that shown in patent No. 81,065, granted to him November 17, 1868.

This is one of that class of machines where the spring tension is attached to the supply-spool, and necessitates a retrograde movement of the spool with all its wire, to take up the slack. Neither of these devices, when attached to a harvester, were the equivalents, in operation, of the combination in controversy, and never were considered so by either party. The introduction of the rotary intermediate tension device produced a different and better result in the combination, being far more efficient than any spring-arm, and at the same time relieving the supplyreel of a retrograde movement with all its load.

Without considering the point attempted to be made by Withington against Locke, that the latter obtained his idea of the present invention from the former, I cannot find any evidence that satisfies me that Locke had clearly conceived this invention earlier than the winter of 1869 and '70. Notwithstanding the difficulty of originating such a device, adapting it to a machine, and the necessity almost always arising of previous efforts and experiments, no evidence of descriptions, sketches, or models made in secret or communicated to others prior to that time, is adduced.

The testimony as to the date of Locke's conception of the invention consists solely in his unsupported allegation that he conceived the invention in the summer or fall of 1869. This amounts to nothing more than Withington's allegation that he conceived the invention months before December, 1869. The date of discovery of an invention must be proved, not alleged. Some time during the following winter, in what month no one but Locke can tell, he put the complete invention on a full-sized binder. This he says was successfully operated in the months of January, February, and March, 1870.

Admitting that Locke was an original inventor, it is impossible to fix the date of the invention by him earlier than January, 1870. The binder alluded to was destroyed by fire in the spring of 1870. Another was built and a successful experiment was made therewith in the harvest of 1870. In 1871 it is alleged that binders containing the invention were made, but it is not clear from the testimony whether they were used. They have been made, sold, and used, however, in the harvests of the years following. Improvements and changes in adaptation also were made, but no change in the principle of the invention. As already stated, the application of Locke was filed in October, and his patent granted in November, 1871.

Withington was first to clearly conceive this invention, but it is con