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for consideration on appeal,” and, second,“ upon a showing duly verified of good and sufficient reasons why they were not earlier presented."
When admitted upon a showing such as that above indicated, they are not entered for consideration on appeal, but for the purpose of consideration by the Primary Examiner prior to appeal. In this case the showing was required, and I agree with the Examiner that it is sufficient to justify the late presentation of the claim. Under these circumstances it was error to admit the claim merely for the purpose of appeal. It should be considered and acted upon by the Primary Examiner.
The petition is granted.
C. E. SEARS & Co. v. A. & R. LOGGIE.
Decided November 8, 1909.
148 0. G., 1088.
Where, after pleadings had been filed in an opposition proceeding, jurisdiction was restored to the Examiner of Trade-Marks for the purpose of refusing registration in view of a registered trade-mark and no action was taken by the applicant for more than a year after the letter of the Examiner of Trade-Marks refusing such registration, Held that on motion by the opposer the Examiner of Interferences should issue an order that the applicant show cause why the opposition should not be sustained. ON PETITION.
TRADE-MARK FOR CANNED FRUITS AND VEGETABLES.
Messrs. Steuart & Steuart for C. E. Sears & Co.
TENNANT, Assistant Commissioner:
This is a petition by C. E. Sears & Co. that proceedings in the above-entitled case be resumed, or that an interference be declared involving the trade-mark application of A. & R. Loggie with said C. E. Sears & Co., or that the final judgment be entered in favor of C. E. Sears & Co.
It appears that the trade mark of A. & R. Loggie was published in the OFFICIAL GAZETTE of February 4, 1908; that on March 4, 1908, C. E. Sears & Co. filed an opposition against the registration of said mark. Answer to the notice of opposition was duly filed by the applicant and replication filed by the opposer. Times were then set by the Examiner of Interferences for the taking of testimony in the case. On March 11, 1908, the Examiner of Trade-Marks requested jurisdiction of the application for the purpose of refusing registration in view of a certain registered trade-mark. Jurisdiction was given to the Examiner for this purpose, and on March 13, 1908, a formal letter written in the application of A. & R. Loggie refusing registration of the mark claimed in view of such references. In view of this action of the Examiner the taking of testimony in the case was suspended.
More than one year has elapsed since the date of the letter of the Examiner of Trade-Marks refusing registration of the applicant's mark in view of the reference cited, and no responsive action has been taken by the applicant. In order that the opposition proceeding may be concluded, in view of these circumstances the Examiner of Interferences is directed to reinstate the opposition proceedings and to order the applicant, A. & R. Loggie, to show cause within a reasonable period why the opposition should not be sustained and judgment rendered that said applicant is not entitled to register its trade-mark.
BAETZ v. KUKKUCK.
Decided January 13, 1909.
148 0. G., 1343.
1. INTERFERENCE-MOTION TO DISSOLVE-TRANSMISSION.
A motion to dissolve, alleging no interference in fact on account of the meaning which it is contended should be given a certain term, is too indefinite to be transmitted where this term does not occur in all the counts
and it is not stated to which of the counts the motion is intended to apply. 2. SAME-SAME-SAME.
An allegation in a motion to dissolve that the opposing party has no right to make the claims “since the issue covers an invention not contemplated nor disclosed by him in the original specification (Rule 70)” Held not a sufficiently definite statement of the reasons upon which the motion is
based and transmission of the motion properly refused. 3. SAME-SAME-SAME.
A motion to dissolve on the ground of the lack of right of the opposing party to make the claims was properly refused transmission where the motion did not specifically state what elements of the claims were not shown. APPEAL ON MOTION.
FEED MECHANISM FOR DRYING APPARATUS.
Mr. Emil Starek for Baetz.
This is an appeal by Baetz from a decision of the Examiner of Interferences refusing to transmit a motion to dissolve.
The motion to dissolve is based on four grounds-namely, first, that there is no interference in fact; second, that the senior party has no right to make the claims; third, irregularity in declaring the interference, and, fourth, that the claims are not patentable to Kukkuck. The Examiner of Interferences denied the motion as to all grounds, for the reasons, as to the first and second grounds, that the motion was not sufficiently definite; as to the third ground, that the irregularity alleged was substantially the same as that urged on the motion to shift the burden of proof, which was decided at the same time as the motion to transmit, and as to the fourth ground, that the reasons were not stated with sufficient definiteness and, furthermore, related apparently to the same facts urged in support of the first and second grounds.
A careful reading of the motion and the briefs filed in behalf thereof before the Examiner of Interferences and on the present appeal discloses no error in his decision. With respect to the first ground, the reasons given in support thereof appear to relate to the use in the claims of the word “ confined,” which it is contended must be interpreted in the light of a prior patent to Baetz, No. 845,843. As pointed out by the Examiner of Interferences, this term does not appear in counts 6 to 10, inclusive, and the motion is not sufficiently definite because it does not state to which of the counts it is intended to apply.
The reason given in support of the second ground is as follows: Kukkuck had no right to make the claims involved in interference since the issue covers an invention not contemplated by him nor disclosed by him in the original specification (Rule 70).
This is clearly not a sufficiently definite statement of the reasons upon which this ground of the motion is based. If by the parenthetical inclusion of Rule 70 it was intended to imply that new matter had been placed in the Kukkuck application and his claims corresponding to the issue were based thereon, it should have been clearly stated of what that new matter consisted.
As to the third ground, the alleged irregularity, so far as the reasons given therefor in the motion are concerned, relates wholly to the relation between the Kukkuck application and the earlier Baetz patent—that is, to the question of shifting the burden of proof. This question was raised on a motion to shift the burden of proof, which was decided at the same time as the motion to transmit.
The reason given in support of the fourth ground is as follows: Kukkuck having laid no foundation for the claims and no construction to support them they are not patentable to him.
This is clearly a statement that Kukkuck has no right to make the claims. In other words, it is the same as the second ground, and for the reasons given above it should have been specifically pointed out on what Kukkuck's lack of right to make the claims was based, or, in
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other words, those elements of the claims which were not readable on the Kukkuck device should have been specifically stated.
The decision of the Examiner of Interferences is affirmed.
LOTTERHAND v. CORNWALL.
Decided November 5, 1909.
148 0. G., 1344.
1. INTERFERENCE-PRELIMINARY STATEMENT-APPLICATION FILED BY AN ADMIN
ISTRATOR-STATEMENT MAY BE MADE BY ASSIGNEE OF ENTIRE INTEREST. Where an application was filed by the administrator of an inventor and the entire interest therein assigned, it is not necessary that the preliminary
statement be made by the “applicant,” but it may be made by the assignee. 2. SAME-SAME-RULE 131 CONSTRUED.
Rule 131 relates only to the assignee of an undivided interest, and it is not necessary that the assignee of the entire interest file a motion such as provided for in that rule in order to be allowed to file a preliminary state
ment. 3. SAME-MOTION TO DISSOLVE-RENEWED Motion-APPEAL.
Where transmission of a motion to dissolve is refused and an amended motion is flled, appeal from the decision refusing to transmit the original
motion is abandoned. 4. SAME-SAME-TRANSMISSION-INFORMALITY.
A motion to dissolve, alleging informality because the claims in issue are for incomplete combinations when read on the opposing party's disclosure, was properly refused transmission, since this question is one relat
ing to the merits. 5. SAME-SAME-SAME-APPLICATION OF REFERENCES.
A motion to dissolve on the ground of non-pa tentability of the counts of the issue should be refused transmission unless the patents relied upon are specially named and applied.
APPEAL ON MOTION.
Mr. I'm. R. Baird and Mr. Shipley Brashears for Lotterhand. (Mr. Stephen J. Cox of counsel.)
Mr. F. R. Cornwall pro se.
BILLINGS, First Assistant Commissioner:
This case comes up on appeals by Lotterhand from decisions of the Examiner of Interferences on motions to strike out the preliminary statement of Cornwall and to transmit a motion to dissolve.
A motion having both these objects in view was filed by Lotterhand on August 28, 1909, and was denied by the Examiner of Interferences in a decision rendered September 9, 1909. On the day the limit of appeal was to expire Lotterhand filed an appeal from this decision and also two renewal motions, seeking the same relief as the original motion. These motions were filed in separate papers and made to differ in some other respects from the original motion, with a view to overcoming defects pointed out in the previous decision of the Examiner of Interferences. On September 29, 1909, the Examiner of Interferences rendered decisions denying each of the renewal motions, and on October 6 appeals from these decisions were filed.
By bringing the renewal motions before the Examiner of Interferences Lotterhand, in effect, abandoned his appeal on the first motion (Williams v. Webster v. Sprague, ante, 200; 148 0. G., 280.) The appeal from the decision on the original motion is therefore dismissed. The appeals based on the renewal motions will be considered.
With regard to the motion to strike out Cornwall's preliminary statement it is contended in behalf of Lotterhand that Cornwall himself should have made the statement instead of Hopkins—the representative of the assignee—because the rules require that the “applicant” make the statement, and, further, that the statement is defective because it does not show the source of the information and belief
upon which the assignee founds the allegations in the statement. Rule 110, providing for preliminary statements, states that “ Each party to the interference will be required to file," etc., not that the
applicant” shall file it. It is of record in the oath accompanying Cornwall's application that the inventor himself is dead and that Cornwall files the application as administrator. Under these circumstances it is not to be assumed that because he is the applicant he had any special knowledge of the time or manner in which the invention was completed. The assignee of the entire interest in this case is quite as likely to be apprised of the facts necessary to the preliminary statement as is the administrator of the estate of the deceased inventor. It appears, further, in the record of the application that the assignee has intervened and appointed an attorney of his own selection. (Rules 5 and 20.) It is deemed entirely proper that the assignee of the entire interest should make the preliminary statement in this case, and, further, that the facts appear so fully in the record that no additional showing is required. A separate motion such as provided for by Rule 131 is unnecessary where the assignee holds the entire interest, as in the present instance. (Hastings v. Gallagher, C. D., 1900, 158; 93 0. G., 189.)
The Examiner of Interferences committed no error in denying the motion to strike out the preliminary statement executed by an officer of the assignee company which was filed in behalf of Cornwall,