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De Ferranti and Hamilton presented no testimony, and are therefore restricted to the filing date of their application-August 14, 1903—for conception and constructive reduction to practice of the invention.

Pratt has presented testimony which establishes the reduction to practice of the invention disclosed in his application as early as June, 1902, and his proofs of this fact are not disputed by de Ferranti and Hamilton. It is, however, contended that Pratt's application does not disclose the invention in issue and that he therefore has no right to make the claims in controversy. It is pointed out that Pratt defines the flux which passes between the magnet-poles as the “ main flux," and it is urged that it cannot properly be termed a “considerable leakage flux” within the meaning of the issue. It is further contended that Pratt's construction is not capable of producing a ninety-degree lag without the use of lagging-coils, which it is the purpose of the de Ferranti and Hamilton invention to avoid.

The first of these contentions is clearly untenable. Although it is true that Pratt defines the flux which traverses the air-gap between the adjacent magnet-poles as the main flux" and that which threads the disk as “leakage,” while de Ferranti and Hamilton call the flux from the intermediate leg of the magnet to the others across the intervening air-spaces “leakage," the torque for rotating the disk in each case is produced in the same manner. As stated by the Examiner of Interferences:

It is not believed that the expression “leakage" should be given the restricted meaning which the patentees suggest. The flux produced by the shunt-magnets of both parties may well be divided into two parts, first, that which threads the disk, and which, in conjunction with the flux of the series magnet, produces rotation; and, second, all the remaining flux which flows through the magnetic circuit. The first-mentioned portion of the flux de Ferranti and Hamilton term the working flux, whereas Pratt designates this the leakage-flux, the remaining flux de Ferranti and Hamilton term the leakage-flux, whereas Pratt designates this the main flux. This, however, is simply a transposition of terms; both admittedly use the same portion of the flux to secure rotation.

It seems reasonable that all the flux, in both cases, which does not pass through the rotatable element should be termed leakage-flux. This is a proper interpretation of the term, and one which clearly and accurately and in the same sense applies to the constructions of both parties.

It is therefore clear that in so far as the real invention is concerned it is immaterial that the terminology originally used by Pratt and de Ferranti and Hamilton to define the functions of their respective structures differed.

In respect to the contention that the device disclosed in Pratt's application does not embody the invention in issue, because the magnetic leakage of the shunt-magnet is incapable of producing exactly ninety degrees lag without the use of a lagging-coil, it is of interest to refer to the history of the cases of the respective parties and to the preliminary proceedings in this interference.

The basis for this contention is found in lines 18 to 35, page 1, of the specification of de Ferranti and Hamilton's patent, which read as follows:

In these meters it is necessary to produce a lag of ninety degrees of the magnetic field produced by the shunt-current behind the impressed electromotive force.

The object of our invention is to provide a simple form of meter in which the required phase displacement is obtained without the use of special arrangements, such as additional choking-coils or secondary circuits.

Our invention consists, broadly, in employing a shunt-magnet having large magnetic leakage through non-hysteretic and non-conductive material, such as air, so as to obtain a lag of ninety degrees of the effective torque-producing flux behind the impressed electromotive force without the use of additional fluxretarding devices.

It is pointed out that in the de Ferranti and Hamilton patent the “large magnetic leakage " through air is accomplished by winding the coil of the shunt-magnet upon the intermediate leg thereof at a considerable distance from its poles, whereas the coil of Pratt's shuntmagnet extends down the inner leg substantially to the adjacent portions of the magnet, usually referred to as “pole-faces.”

It appears that after the granting of de Ferranti and Hamilton's patent involved herein Pratt presented in his application four claims copied from that patent. The Primary Examiner, in letters dated March 6, 1906, and May 8, 1906, rejected these claims, upon the ground that Pratt had no right to make the same, stating that the expressions “ wound on a part only of the shunt-magnet ” and “wound on a part of the shunt-magnet remote from its poles,” when read in the light of the de Ferranti and Hamilton patent, were limited, in effect, to the winding of the coil of the shunt-magnet upon the core so that the parts adjacent to the poles were left bare, while in Pratt's device the winding, which extended substantially to the poles, is not“ on a portion of said core remote from its poles ” or

on a portion only of said magnet” in the sense referred to in de Ferranti and Hamilton's specification. Upon argument of this question, however, the Examiner was convinced of Pratt's right to make the claims and this interference was declared, with all of the four claims constituting the counts of the issue. Thereafter a motion was made by de Ferranti and Hamilton to dissolve the interference upon the ground, inter alia, that Pratt had no right to make the claims. The Examiner in his decision upon the motion for dissolution said:

In de Ferranti and Hamilton the shunt-coil is wound on the upper portion of the middle leg of the magnet, leaving the lower portion of that leg entirely exposed, whereby great leakage is permitted. In Pratt's case the shunt-coil is wound over the whole length of the middle leg of the magnet from the junction of the legs to the polar extremities, a structure which would undoubtedly tend to materially confine the leakage of magnetic lines. It should be borne in mind, however, that the examination as to leakage of a magnet of this form cannot be confined to the plane of the magnet, because there will be a lateral leakage from the right and left hand legs of the magnet toward the observer and away from the observer (looking upon the magnet as represented in the drawing) and returning to the body of the magnet at the central pole.

In the first and second counts of the issue the limitation, or rather intended limitation, relates to the relation of the shunt-coil to the magnet-core, and is expressed as follows: “a coil connected as a shunt across the supply-mains and wound on a part only of said shunt-magnet.” The structure of both of these parties, so far as that definition is concerned, is equally covered by this language, because a part only of the magnet is in no wise a satisfactory definition of the special feature of either one of these magnets. The central leg, or any portion of the central leg, or any other portion of the magnetic body can be described as a part only of the shunt-magnet. De Ferranti and Hamilton have attempted to define this structure by the functional statement "whereby considerable magnetic leakage is produced from the remaining parts." The Examiner is not at all satisfied that this functional distinction is a real distinction between the cases in' interference. As remarked above, there is a lateral leakage which is not controlled especially by the position of the shunt-magnet, and that lateral leakage will be considerable and will be present in both cases.

It is believed that this statement of the Examiner in respect to the interpretation of the claims in issue is sound. It is further to be observed that the counts of the issue do not call for a lag of exactly ninety degrees, and there is no reason which requires that this limitation be imported into the claims. Although de Ferranti and Hamilton state in their specification that the object of their invention is to obtain the required phase displacementwithout the use of special arrangements such as additional choke-coils, etc.— it is apparent that the de Ferranti and Hamilton structure does not give the exact ninety degrees lag, for several means of adjusting the lag are described in the specification of the patent, lines 8 to 21, page 3, of which read as follows:

We prefer to make the shunt-core somewhat longer than the coil which it supports and to mount the coil so that it can be longitudinally adjusted on the core. This is shown in Fig. 2, the coil d being adjusted by inserting washer e, of suitable thickness.

We may use any of the following four methods of adjusting the lag: first, altering positions of shunt-coil on its core; second, varying diameter of the sleeve 1 of Fig. 10; third, varying length of said sleeve l; fourth, varying resistance t in the shunt-circuit. These methods may be used either separately or in conjunction.

The adjustments thus specified are clearly the functional equivalent of Pratt's lagging-coil.

It is well settled that claims forming the issue of an interference will be construed as broadly as the natural meaning of their terms will warrant.

For the reasons above stated I am of the opinion that the claims in issue are directed to an invention which is found in the structures disclosed in each of the interfering applications and that the terms of these claims, while appropriated by Pratt from the specification of de Ferranti and Hamilton, clearly and aptly describe the structure disclosed in Pratt's application. It is therefore held that Pratt has a right to make the claims forming the counts of the issue of this interference.

Inasmuch as Pratt has established a reduction to practice of the invention disclosed in his application prior to any date of conception which can be accorded to de Ferranti and Hamilton he is entitled to be awarded priority of invention.

The decision of the Examiners-in-Chief is affirmed.

P. J. Bowlin LIQUOR COMPANY V. J. AND J. EAGER COMPANY.

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TRADE-MARKS—WHISKY AND GIN-GOODS OF THE SAME DESCRIPTIVE PROPERTIES.

Whisky and gin are goods of the same descriptive properties. Decision in Vanden Bergh & Company v. Belmont Distillery Co. (C. D., 1903, 496; 107 O. G., 2235) overruled.

APPEAL from Examiner of Interferences.

TRADE-MARK FOR HOLLAND GIN.

Mr. Arthur E. Wallace for P. J. Bowlin Liquor Company.
Mr. A. Parker Smith for J. and J. Eager Company.

BILLINGS, Acting Commissioner:

This is an appeal by the P. J. Bowlin Liquor Company from a decision of the Examiner of Interferences sustaining a demurrer to its notice of opposition and adjudging that the same should be dismissed.

The mark for the registration of which the J. and J. Eager Company made application is the word “Humboldt ” as a trade-mark for Holland gin. The P. J. Bowlin Liquor Company opposed the registration of this mark on the ground that it was the owner of the mark“ Humboldt ” as applied to whisky and had obtained a certificate of registration therefor, No. 50,014, dated February 27, 1906.

use.

The J. and J. Eager Company demurred to this notice of opposition on several grounds; but the only ground argued before the Examiner of Interferences and decided by him was that the goods of the respective parties are not of the same descriptive properties. The Examiner of Interferences in sustaining the demurrer based his decision on the ruling in Vanden Bergh & Company v. Belmont Distillery Co., (C. D., 1903, 496; 107 O. G., 2235,) in which it was held that whisky and gin are goods of different descriptive properties.

That decision was rendered in a case arising under the TradeMark Act of 1881, which did not provide for an appeal from the decision of the Commissioner of Patents. In two cases arising under the act of 1905 the Court of Appeals of the District of Columbia has rendered decisions bearing upon the question of when goods must be considered to be of the same descriptive properties.

These decisions are Walter Baker & Company, Limited, v. Harrison (post, 284; 138 O. G., 770; 32 App. D. C., 282) and Phoenix Paint & Varnish Company v. Lewis & Bros., (post, 303; 139 0. G., 990; 32 App. D. C., 285.) In the former the Court said:

Things may be said to possess the same descriptive properties when they can be applied to the same general use. Coffee and cocoa, when used as beverages, are at once associated as belonging to the class of beverages in general domestic

They belong to the class of beverages universally used on the table and sold in prepared packages for that purpose. Should the same mark be granted to different persons for use on coffee and cocoa, respectively, the natural and certain result would be, that the one wishing to profit by the use of the same mark would adopt the style of package used by the other, and, by such unauthorized imitation, cause confusion in the mind of the purchasing, consuming public as to the quality of the goods so marked. The intent of the statute is to protect the rightful owners of trade-marks in their valuable property rights, and it seems to tax the courts to the utmost to protect those rights against the ingenuity of counsel and the designs of sharp competitors. A mark should be denied, not only when used upon goods of the same descriptive properties as a similar registered mark, but when used on goods belonging to the same general class.

In the latter it was said:

We think two trade-marks may be said to be appropriated to merchandise of the same descriptive properties in the sense meant by the statute when the general and essential characteristics of the goods are the same. To rule that the goods must be identical would defeat the purpose of the statute and destroy the value of trade-marks. The test is whether there is such a sameness in the distinguishing characteristics of the goods as to be likely to mislead the general public. If there is only one mark should be registered.

Applying these principles thus announced by the court to the facts in this case, it must be held that gin and whisky are goods of the same descriptive properties. The decision in Vanden Bergh & Company v. Belmont Distillery Company, supra, so far as it holds otherwise, is therefore overruled.

The decision of the Examiner of Interferences is reversed.

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