EX PARTE WRIGHT. Decided July 13, 1909. 145 O. G., 513. PRACTICE-FINAL ACTION-REOPENING. Where one petition for the entry of an amendment for the purposes of appeal or for reconsideration of the merits, at the discretion of the Examiner, has been granted and the Examiner in entering the amendment indicates that it is done for the purpose of appeal, Held that the applicant is not in a position to urge that the case was reopened for the consideration of new claims and that a further amendment containing such claims was properly refused entry. ON PETITION. DRAFT AND BUFFING GEAR FOR CARS. Mr. F. E. Stebbins for the applicant. TENNANT, Assistant Commissioner: This is a petition that the Examiner be directed to enter the amendments submitted May 27 and June 1, 1909. The record shows that a previous petition was taken from the action of the Examiner holding this application finally rejected, the prayer of the petition requesting— the Commissioner to direct the Examiner to enter the amendment of February 20, 1909, for the purpose of appeal to the Examiners-in-Chief; or for a reëxamination of the claims as amended in the discretion of the Examiner. In view of certain informalities in the record this petition was granted. The Examiner when considering the record of the case found several errors, to which the applicant's attention was directed in a letter dated May 7, 1909, which concludes as follows: When proper directions are given, these amendments will be entered and the case then will be in condition for appeal. Applicant, instead of merely correcting the errors to which his attention was called by the Examiner's letter, presented an amendment dated May 28 containing new claims to be substituted for those of record and also adding certain claims. By the amendment dated June 2, 1909, applicant presented two additional claims. It is from the refusal of the Examiner to enter the claims presented by these amendments that the petition was taken. It is to be noted that the applicant in his previous petition requested the entry of an amendment for the purpose of appeal or for reëxamination of the claims as amended, in the discretion of the Examiner. The letter of the Examiner dated May 7, 1909, clearly stated his intention to enter the claims, when the informalities were corrected, for the purpose of appeal only, and this was in accordance with the request contained in applicant's petition. In view of these facts the applicant is not in a position to urge that the case was reopened for the purpose of prosecution of new claims. The action of the Examiner in refusing to enter the claims presented in the amendments of May 27 and June 1 was right. The petition is denied. EX PARTE THE EMPIRE KNIFE COMPANY. Decided June 17, 1909. 145 O. G., 763. TRADE-MARKS-APPLICATION FOR REGISTRATION-DESCRIPTION OF GOODS. An application for the registration of a trade-mark should state in unequivocal language the particular description of goods to which the trademark is appropriated. ON PETITION. TRADE-MARK FOR POCKET-KNIVES, SCISSORS AND SHEARS, TABLE AND KITCHEN KNIVES. Messrs. Bartlett, Brownell & Mitchell for the applicant. MOORE, Commissioner: This is a petition from the action of the Examiner of TradeMarks objecting to the particular description of goods in the aboveentitled application. In the application it is stated that the mark shown in the accom panying drawing has been adopted for goods in Class 23, Cutlery, machinery, and tools and parts thereof, including pocket-knives, scissors and shears, table and kitchen knives. The Examiner objected to the use of the word " including," stating in his letter of April 19, 1909, that that term implied that the mark was used upon other goods than those specifically enumerated, and in a letter of April 23, 1909, he suggested that the description and statement of goods be amended to read as follows: Has adopted and used the trade-mark shown in the accompanying drawings for pocket-knives, scissors and shears, table and kitchen knives, Class 23, Cutlery, machinery and tools and parts thereof. In a letter of May 4, 1909, and again in a letter dated May 13, 1909, the Examiner stated that if the word "comprising " were substituted for the word "including " the objection to the statement would be withdrawn. 21895-H. Doc. 124, 61-2-10 In the petition it is stated that no reason is seen why the Patent Office should force the adoption of one word rather than another and that the word "including " is preferred to the word "comprising." In his answer to the petition the Examiner, after pointing out why, in his opinion, the word "comprising" is a more definite word when used in connection with a particular description of goods than the word "including," states that "it is not seen that there is any necessity for using either word." Section 1 of the Trade-Mark Act of February 20, 1905, provides, in part, that an application for the registration of a trade-mark shall specify the class of merchandise, and the particular description of goods comprised in such class, to which the trade-mark is appropriated. The objection of the Examiner to the statement in this applition is believed to have been well taken. Applicant does not state the particular class of goods to which his mark is applied, but says that "it is applied to goods including pocket-knives, &c." This statement is clearly susceptible of the interpretation that, while the mark is used on the particular goods specified, it may have been used on others in the same general class. As the Examiner states in his answer, it is not seen that there is any necessity for using the word "including" or the word "comprising; " but applicant should state clearly the particular class of goods to which his mark is applied. The form set out in the Office letter of April 23, 1909, which conforms to the suggested form published on page 35 of the Trade-Mark Rules, or an equivalent form of unequivocal character, should be used. The petition is denied. RYDER V. WHITE. Decided July 27, 1909. 145 O. G., 763. 1. INTERFERENCE-PRELIMINARY STATEMENT-MOTION TO AMEND. Where in support of a motion to amend his preliminary statement a party alleges that at the time it was made he thought the claims were limited to the structure shown in his drawing and did not discover that they were capable of a broader construction until after a decision was rendered on a motion to dissolve, Held that such a mistake is one of law and not of fact and constitutes no ground for permitting the amendment. 2. SAME-SAME-SAME. Where a party has had access to the preliminary statement of his opponent, he will not be permitted to amend his statement to change the date of conception or of reduction to practice from a date subsequent to that alleged by his opponent to one prior to such date unless most satisfactory reasons are given in explanation of the facts necessitating such amendment and of the delay in bringing a motion to amend. ON APPEAL. CAN-MARKING MACHINE. Mr. Arthur P. Greeley for Ryder. Messrs. Wilhelm, Parker & Hard for White. TENNANT, Assistant Commissioner: This is an appeal by Ryder from a decision of the Examiner of Interferences refusing to accept an amended preliminary statement. It appears that this interference, No. 28,989, is a companion interference to No. 28,988 involving Ryder, White, and other parties, the three-party interference having been declared upon a broader issue than that which forms the basis of the present interference. Preliminary statements alleging different dates were filed by Ryder in these interferences, that in No. 28,988 alleging earlier dates than those of the preliminary statement in this interference. Motions to dissolve were brought in each of the interferences and interference No. 28,988 was dissolved, but the present interference, No. 28,989, was continued. Ryder alleges that at the time he signed the preliminary statement in the present interference he believed it was necessary for him to state the dates of conception, disclosure, making of model, and reduction to practice of the commercial machine in the specific form in which it is shown in the drawings of his application involved in this interference, and it is urged that he was not aware until after the decision of the Commissioner upon a motion for dissolution in this interference that the claims in issue were not limited to the machine shown in the drawings, but are capable of broader construction, applicable to devices made prior to the dates of conception set in the present interference. The Examiner of Interferences held that such an alleged mistake was not a mistake of fact, but was a mistake of law, which did not constitute a ground for amendment of the preliminary statement. This conclusion of the Examiner is clearly right. The applicant not only had before him the issues of the present interference, but also of the interference upon the broader issues, and in his preliminary statement alleged different dates of invention in the respective cases. The question of the breadth of the issue was clearly before him, and his mistake as to the scope thereof was of law rather than of fact. It is well settled that mistakes of law of this character do not constitute grounds, for permitting an amendment to a preliminary statement. (McDermott v. Hildreth, C. D., 1902, 43; 98 O. G., 1282; Dahlgren v. Crocker, C. D., 1902, 107; 98 O. G., 2586; Dunn v. Halliday, C. D., 1905, 510; 119 O. G., 1261; Miller v. Wallace, C. D., 1907, 391; 131 O. G., 1689.) It is further noted that Ryder desires to allege a date of reduction to practice prior to the date of reduction to practice alleged by White, although that alleged in the preliminary statement in this interference, as well as that alleged in interference No. 29,988, which was based on a broader issue, was subsequent to the date alleged by White. It is well settled that where a party has had access to the preliminary statement of his opponent he will not be permitted to amend his statement to change the date of conception or of reduction to practice from a date subsequent to that alleged by his opponent to one prior to such date unless most satisfactory reasons are given in explanation of the facts necessitating such amendment and of the delay in bringing a motion to amend. In the present case the only reason given for alleging an earlier date is that Ryder could not obtain the facts at the time his original preliminary statement was made and that it was not until he had had an opportunity to talk with the machinist McCormick, who assisted him in the construction of the work, that he was enabled to definitely fix the date of reduction to practice beyond that sought to be alleged. There appears to be no reason why Ryder could not have seen McCormick prior to the time he prepared his preliminary statement, nor is there any showing to excuse the long delay in obtaining knowledge of these alleged facts. Under these circumstances he is clearly not entitled to file such an amended preliminary statement. The decision of the Examiner of Interferences is affirmed. EX PARTE RIDDLE. Decided July 10, 1909. 145 O. G., 1021. PRACTICE-INTERFERENCE BETWEEN APPLICANT AND PATENTEE-CLAIMS UNDER REJECTION. Where an applicant makes claims identical with those of a patent and the Examiner holds that when construed broadly enough to read upon the applicant's device the claims are unpatentable, Held that this is in effect a holding that the applicant has no right to make the claims, and a request for interference was properly denied until the question of patentability of the claims to him had been settled. ON PETITION. CASH-REGISTER. Mr. J. B. Hayward, Mr. R. C. Glass, and Mr. W. H. Muzzy for the applicant. |