REJECTED CASES-Continued.

2. PRACTICE-Final rejection should not be given until all matters of form are settled. Ex parte Klaus, 87.

3. SAME AMENDMENTS-Where a claim was finally rejected and at the same time the statement of invention was criticised as being too broad, the final rejection was premature and an amendment touching the merits may properly be admitted thereafter.

Id.

4. APPLICATION-REJECTION-OBJECTION-Where an application was rejected on a previously allowed application taken cumulatively with a patent and the applicant petitioned the Commissioner for relief from such action, Held, that the question involved was appealable to the Board of Examiners-inChief. Ex parte Seymour, 127.

REJECTED CLAIMS. Sec Amendments, 2; Construction of Specifications and Patents, 19, 45, 46, 47, 48, 49, 50, 51, 52, 53.

REOPENING OF CASES. See Interference, 21.

RESERVATION FOR SUBSEQUENT PATENTS. See Subsequent Patents, 2.
RESIDENCE. See Jurisdiction of Federal Courts.

RESULTS. See Construction of Specifications and Patents, 7; Infringement, 12; Invention, 1.

REVIVAL OF ABANDONED APPLICATIONS. See Abandoned Applications, 1. ABANDONED APPLICATION-REVIVAL-In order to revive an abandoned application, unavoidable delay in the prosecution thereof must be shown, and such showing must cover the entire period of delay. Ex parte Heine, 106. REVOCATION OF POWER OF ATTORNEY. See Attorney.

SALE OF PATENTED ARTICLES. See Injunction, 10, 11; Use and sale of patented articles.

SCOPE OF PATENT. See Construction of Specifications and Patents, 11, 12.
SEAL OF CORPORATIONS. See Trade-Marks, 2.

SECRETARY OF THE INTERIOR. See Appeal to the Secretary of the Interior;
Assignments, 10.

SIGNATURE OF APPLICANT. See Witnesses to Applications.

SPECIFICATIONS. See Construction of Specifications and Patents, 32.

STATE AS A CORPORATION. See Trade-Marks, 29.

STATE COURTS. See Suits for Infringement, 11.

STATE OF THE ART. See Construction of Specifications and Patents, 19, 28, 29; Priority of Invention, 2.

STATE STATUTES. See Trade-Marks, 39.

STATUTES OF LIMITATION. See Delay in Bringing Suit, 1; Marking Unpatented Articles "Patented."

SUBPOENAS.

WITNESS-SUBPŒNA DUCES TECUM-AUTHORITY OF CLERK-PATENT OFFICE INTERFERENCE PROCEEDINGS-Sec. 4906, Revised Statutes, providing that, on the application of any party to a contested case pending in the Patent Office, the clerk of any Federal court shall issue a subpoena for a witness commanding him “to appear aud testify," does not include an authority to issue a subpoena duces tecum. *Ex parte Moses, 255.

SUBSEQUENT PATENTS. See Priority of Invention, 2.

1. MECHANICAL SKILL-SUBSEQUENT PATENT FOR MERE CHANGE IN Mode of OPERATION SHOULD BE DENIED-Where the inventor of a machine for coupling the links of drive-chains simultaneously filed two applications for patents, one for a machine for an endwise and the other for a machine for a sidewise thrust of the coupling-bar, and had a patent issued on the first machine, Held that he was not afterward entitled to a patent on the second

SUBSEQUENT PATENTS-Continued.

machine, as it was only a matter of mechanical skill, and not invention, to adapt the endwise to the sidewise thrust. *Fassett v. Ewart Manufacturing Company. 434.

2. RESERVATION FOR SUBSEQUENT PATENT-Where, in the case above, the patent on the endwise-thrust machine contained a reservation saying that "the feed-chute, guideway, and means for pushing the assembled links forward, a delivery wheel or device, the fulcrum plate or corner, operating mechanisin, and such details of construction as are not herein broadly claimed form the subject of a separate application," Held that such reservation meant that the invention was broadly claimed in the patent, and that the patentee meant to reserve only the right to claim the elements specifically in his separate application, and that a patent on such separate application, claiming the features mentioned in the reservation broadly and generically, could not be sustained as covered by the reservation. *Id. SUITS FOR INFRINGEMENT. See Construction of Specifications and Patents, 45, 46, 47, 48, 49, 50, 51, 52, 53; Damages and Profits; Demurrer; Disclaimers; Evidence; Infringement, 2, 5, 6, 7, 8, 18, 22; Injunction; Subpœnas; Parties to Suit.

1. INFRINGEMENT-OPINION-EVIDENCE-DRYING APPARATUS-In an action for infringement of a patent for improvements in fruit-driers, the patentee, after stating that he had been engaged in mechanical pursuits, had seen many different driers, and had sufficient knowledge of mechanics to permit him to give an intelligent opinion as to the cost of a piece of machinery when he saw it, was asked which in his judgment would be the cheaper to construct, bis or the alleged infringing drier. Held that the question was not objectionable, on the ground that the witness had said he did not know the cost of the infringing drier. *Hunt Bros. Fruit Packing Company v. Cassidy, 262. 2. SAME-INVENTION-BURDEN OF PROOF-DIRECTING VERDICT-The existence of Letters Patent issued in due form constitutes prima facie evidence of the validity of the patent, and where, in an action at law for infringement, such letters are introduced an alleged want of invention is matter of defense, the burden of showing which is on defendant, and the court cannot direct a judgment for defendant, even though the patentee on cross-examination bas given evidence that may tend to show a prior state of the art excluding invention on his part. Id.

3. SAME-INSTRUCTIONS—QUESTIONS FOR JURY-Whether there was invention in the patent, whether plaintiff was the first inventor, and whether the use of gravity-catches as mechanical equivalents of spring-catches was known at the time of plaintiff's application were questions of fact for the jury. *Id. 4. TRIAL-INSTRUCTIONS-WAIVER OF OBJECTIONS-An exception to the court's refusal to direct a verdict for defendant at the close of plaintiff's evidence is waived by proceeding in the cause and introducing evidence for the defense. (Railway Co v. Cummings, 1 Sup. Ct. Rep., 493, 106 U. S., 700, and Insurance Co. v. Crandall, 7 Sup. Ct. Rep., 685, 120 U. S., 527 followed.) *Id. 5. PLEADING-DEMURRER FOR WANT OF INVENTION-In a suit for infringement of a patent the bill may be met by a demurrer when it makes profert of the patent and the same appears on its face to be invalid for want of patentable invention. (Post v. Hardware Co., C. D., 1886, 247; 35 O. G., 1226; 26 Fed. Rep., 618, followed.) *United States Credit System Company v. American Credit Indemnity Company, 292.

6. APPEAL OBJECTIONS NOT RAISED BELOW-EVIDENCE-CERTIFIED COPY OF ASSIGNMENT-In a suit for the infringement of a patent, when the defense is that complainant had parted with all his interest therein by assignment before filing his bill, and a copy of the record of such assignment in the

SUITS FOR INFRINGEMENT-Continued.

Patent Office is introduced in support thereof, while, perhaps, such copy, if standing alone and seasonably and properly objected to, would be inadmissible, yet the objection that no foundation was laid for the introduction of secondary evidence will not be considered on appeal when it was not raised below. Paine v. Trask, 558. 7. PRIOR ADJUDICATIONS-In a suit for infringement of a patent, where it appears that the courts of other circuits have already sustained the validity of the patent as against all the defenses now made, save that of anticipation by reason of certain patents not before in evidence, and have also found that defendants infringed, the court will accept those decisions and examine only the anticipation alleged. *National Folding Box and Paper Company v. Phanix Paper Company, Limited, et al., 588.

8. FEDERAL COURTS--JURISDICTION-TERRITORIAL LIMITS-SUITS AGAINST CORPORATIONS-A corporation cannot be sued in the Federal courts of a district other than in the State of its incorporation. "National Typewriter Company V. Pope Manufacturing Company, 595.

9. ACTION AT LAW FOR INFRINGEMENT-PLEADING-In an action at law for infringement of a patent defeudants, although they plead the general issue, may also maintain a special plea that the combination covered by the patent was not an invention, and also a further plea that the combination covered by the patent required for its production nothing but mechanical skill, in view of the prior state of the art. *Brickill et al. v. City of Hartford et al., 601.

10. Demurrer-In an action at law for infringement of a patent defenses which have been raised by demurrer to the complaint and overruled cannot be part of the answer without leave of court. *Id.

11. SAME-WRIT OF ERROR-But in Connecticut the court will allow such defenses to be set up by plea for the purposes of saving a right to review on writ of error to the Circuit Court of Appeals, it being uncertain whether, under the code pleading, an assignment of error in the ruling on the demurrer is sufficient to secure such right when the demurrant does not allow final judgment to go against him upon it. *Id. 12. ANTICIPATION-DEFENSE UNDER-A plea alleging want of novelty because the alleged invention had been previously patented, on specified dates, to other parties is insufficient, for Revised Statutes, section 4920, requires an allegation that the invention had been patented or described in some printed publication before the time of the supposed invention. *Id.

13. PRINTED RECORD, UNNECESSARY PARTS-COSTS-APPLICATION OF RULE 10, SUPREME COURT OF THE UNITED STATES-Where a party to a suit encumbers the printed record with copies of some fifty immaterial patents, Held it is a proper case for the application of the tenth rule, which authorizes the court (paragraph 9) to impose costs upon the party so guilty. (Railway Co. v. Stewart, 95 U. S., 279, 284.) *Ball and Socket Fastener Company v. Kraetzer. 646. SUITS UNDER SECTION 4915, REVISED STATUTES. See Interference, 9. JURISDICTION-CLAIM THAT THIRD PARTY WAS INVENTOR-Under Revised Stat

utes, section 4915, the only question the Court can consider, is whether the complainant is the first inventor of a patentable device. Whether respondent or a third party was the inventor of the device for which respondent has received a patent should not be inquired into either by the Court or by the Commissioner in interference proceedings between the same parties. *Christie v. Seybold, 515.

SUPREME COURT OF DISTRICT OF COLUMBIA. See Injunction, 8. SUPREME COURT OF THE UNITED STATES. See Decree; Injunction, 7; Practice in the Courts, 1.

TECHNICAL TERMS. See Infringement, 1; Jurisdiction of Federal Courts; Limitation of United States Patent by Foreign Patent Previously Granted, 13.

TERM OF PATENT. See Limitation of United States Patent by Foreign Patent Previously Granted; Particular Patents, 28.

TESTIMONY. See Burden of Proof; Injunction, 18; Interference, 3, 7, 10, 11, 12, 13, 14, 15; Rehearing, 1.

TESTIMONY-WEIGHT AND CONSTRUCTION OF-Testimony must be construed with reference to "the ordinary laws that govern human conduct." (Quoting and discussing Atlantic Works v. Brady, C. D., 1888, 214; 23 O. G., 1330; 107 U. S., 192, and The Telephone Cases, C. D., 1883, 321; 43 O. G., 377; 126 U. S., 1.) Brungger v. Smith, 32.

TESTIMONY TAKEN IN FOREIGN COUNTRIES. See Diligence, 1; Interference, 14. TESTIMONY IN Foreign Country-Requisites of PUBLICATION AS FOUNDATION FOR-In order to constitute a proper foundation for taking testimony in a foreign country; a publication must disclose the invention in controversy and must disclose it as the invention of the party seeking to take such testimony. Parker and Wright v. Jenness, 64.

TITLE OF INVENTION.

1. TITLE OF INVENTION-REQUISITES OF-If the title of an application is short and correctly indicates the nature and design of the invention, the applicant should be allowed, within reasonable limits, to say what it shall be. Ex parte Becker, 95.

2. EXAMINER HAS NO RIGHt to ArbitraRILY SELECT-If the title given by the applicant is not satisfactory to the Examiner, objection should be made; but the Examiner himself should not arbitrarily select such title. Id. TITLE TO PATENT. See Assignments, 2, 3, 4; Mortgage of Patent. TRADE-MARKS. See Appeal to the Secretary of the Interior; Interference, 26. 1. TRADE-MARK-WORD AND PICTURE-A word and a picture which are true alternatives and invariably express the same idea may be covered by one Trade-Mark registration; but the rule will not cover the case of a word and a picture capable of such a variety of modifications that two of them might appear as substantially different things to an ordinary purchaser. Ex parte Adam Roth Grocery Company, 6.

2. CONCESSION OF PRIORITY BY CORPORATION-USE OF SEAL-Where the Examiner of Interferences refused to recognize a concession of priority of TradeMark adoption executed by an officer of a corporation without the corporate seal, Held that a concession of priority is not such an instrument as requires the use of a seal by corporation or individual, and that, it satisfactorily appearing on the record that the officer was empowered to execute the paper, the Office will accept it. Jersey City Packing Company v. Jacob Dold Packing Company, 10.

3. WORD "MAGICO"-The word "Magico" Held not anticipated by the word "Magic" already registered for use on a similar class of goods. Ex parte American Chemical Company, 16.

4. WORD "FAMOUS" NOT PROPER SUBJECT OF-The word "Famous" is merely descriptive in its nature and not registrable as a Trade-Mark. Ex parte Brand Stove Company, (Limited,) 17.

5. THE REPRESENTATION OF A PORTION OF A GLOVE-A" representation of a band with eyelets therein and cross-lacings connecting the eyelets" Held not registrable as a Trade-Mark, since its function is purely decorative in the connection in which it is intended for use. Ex parte Peyser & Co., 18. 6. SAME-The primary function of a Trade-Mark is to denote the origin of the article which bears it. A "representation" which upon its face appears clearly to have another purpose, such as decoration, and which by reason of that decorative character creates no suspicion that it is intended as a TradeMark, is not registrable as such. Id.

13182 PAT-48

TRADE-MARKS-Continued.

7. INFRINGEMENT "One Night Cure" Held not infringed by the words "Beshore One Night Cough Cure." *Kohler Manufacturing Company v. Beshore, 179. 8. CERTIFICATE OF REGISTRATION CONCLUSIVE AS TO MARK-A certificate of registration Held conclusive as to description of plaintiff's mark where he sought to enlarge its terms on a suit for infringement. *Id.

9. MERE ADOPTION CARRIES NO RIGHTS WHERE CONTINUOUS USE DOES NOT CONCUR-A mere adoption of a mark carries no rights unless there concur a continuous use of it and public familiarity with it. To establish a proprietary right in such a mark, it is necessary that the public understanding respecting the purpose of its use shall be fully proved. *Id.

10. THE SUIT BETWEEN THE PARTIES-WHAT IT 18-The controversy between the parties is the single question whether, comparing the two designs upon the upper ends of the spools, there is such resemblance between them as to indicate an intent on the part of defendants to put off their thread upon the public as that of plaintiffs', and thus to trade upon their reputation. *Coats et al. v. Merrick Thread Company et al., 373.

11. GOODS PREPARED TO DECEIVE A PURCHASER-Irrespective of the technical question of trade-mark, the defendants have no right to dress their goods up in such manner as to deceive an intending purchaser and induce him to believe he is buying those of the plaintiffs. *Id.

12. SAME The plaintiffs' and defendants' devices examined and compared with each other and found to be hardly possible to mistake one for the other. Held, consequently, that the defendants' had clearly disproved any intention to mislead purchasers. *Id.

13. SAME DESIGN PATENT-EXPIRATION OF-The history of plaintiffs' and defendants' labels inquired into, and Held that after the expiration of plaintiffs' design patent in 1877 for embossing the ends of sewing-thread spools the public had the right to use it. *Id.

14. SYRUP OF FIGS-The laxative medical compound manufactured by the California Fig Syrup Company under the name "Syrup of Figs" is a preparation which a court of equity will look upon with favor as entitled to protection under the Trade-Mark laws. *Improved Fig Syrup Company et al. v. California Fig Syrup Company, 416.

15. SAME STATEMENTS ON BOTTLES AND PACKAGES-The representations and statements on the bottles and packages of the California Fig Syrup Company's medical compound "Syrup of Figs" are not such as will deprive the California Fig Syrup Company of standing in a cou t of equity in respect to infringement of its Trade-Mark or trade-name. Id.

16. SAME-NOT DESCRITIVE, BUT INDICATIVE OF ORIGIN AND OWNERSHIP-The name "Syrup of Figs" is a good Trade-Mark or trade-name, and one to which the California Fig Syrup Company has an exclusive right as applied to a laxative compound, and as such is not merely descriptive of its preparation, but indicates the origin and ownership of this medical compound, and the California Fig Syrup Company was the first to apply this name to a laxative compound. *Id.

17. SAME-NOT GENERIC-The name or phrase "Syrup of Figs" is in no sense a generic one. It is not a name of a natural product or of a class of natural prodnets. It is merely a name coined and first applied to designate the laxative compound of the California Fig Syrup Company. *Id.

18. SAME-INFRINGEMENT-Defendants infringe the Trade-Mark rights of the California Fig Syrup Company when they apply to their laxative compound the name "Syrup of Figs" or any colorable imitation of that name, as such name does not describe defendants' compound, but merely serves to induce the public to believe that the goods made and sold by them are those manufactured by the California Fig Syrup Company. Id.