lowing the final rejection constitutes a sufficient action to save the case from abandonment, although the drawings have not been amended as required, the formal objection being such as may be corrected after the final decision on the merits. ON PETITION. COIN-CONTROLLED MACHINE FOR ENGRAVING NAME-PLATES. Mr. A. W. Proctor pro se. BILLINGS, Assistant Commissioner: This is a petition from an action of the Primary Examiner holding petitioner's application to have become abandoned for lack of responsive prosecution. After a number of actions the Primary Examiner finally rejected all the claims of the application on July 23, 1907. Prior to this time he had advised applicant that the drawing would be admitted for the purpose of examination only, the lines thereon being rough. On July 21, 1908, applicant filed an appeal to the Examiners-in-Chief. The Examiner held that under Rules 54 and 134 the appeal could not be forwarded until the drawing was corrected and that as applicant had failed to respond to the Examiner's requirement with respect to the drawing the filing of an appeal to the Examiners-in-Chief was an incomplete response and the application was abandoned. This action was repeated and made final, and the present petition was taken. As stated by the Examiner, Rule 134 provides that— except in cases of division all preliminary and intermediate questions relating to matters not affecting the merits of the invention must be settled, before the case can be appealed to the Examiners-in-Chief. But Rule 54 also provides: 54. The foregoing rules relating to drawings will be rigidly enforced. Every drawing not artistically executed in conformity thereto may be admitted for purposes of examination if it sufficiently illustrates the invention, but in such cases a new drawing must be furnished before the application can be allowed. The Office will make the necessary corrections at the applicant's option and cost. As has been stated in prior decisions, the rules should be construed together in order that all the provisions thereof may be made effective. It seems clear that Rule 54 contemplates that the drawing of an application which merely lacks artistic merit shall be accepted as sufficient until it is finally determined whether a patent shall issue thereon. The reasons for this provision of Rule 54 are obvious. To require an applicant to file new drawings prior to the allowance of his application when the drawings orginally filed were objectionable only on the ground that they lacked artistic merit, but were otherwise sufficient for the purpose of examination, would cause unnecessary expense and to that extent work undue hardship upon the applicant. Construing these rules together, it is believed that the objection to the drawing in this case is not one of the formal matters referred to in Rule 134 which must be settled before appeal can be taken to the Examiners-in-Chief. It is therefore held that applicant's response was sufficient, that the application is not abandoned, and that the Examiner should forward the appeal. The registration of a trade-mark is prima facic evidence of ownership, and the presumption is that the use of such mark has continued. In an interference between an applicant and a registrant involving a mark registrable only under the ten-years" clause of the Trade-Mark Act of 1905 applicant was properly Held not entitled to registration in the absence of testimony showing that the registrant had not used the mark during the ten years next preceding the passage of that act. 2. SAME "UNITED STATES STANDARD" FOR FLOUR-DECEPTIVE-NOT REGIS TRABLE. The words "United States Standard" Held not entitled to registration, as such registration would tend to indicate that the United States Government was guaranteeing that the flour on which the mark was placed was up to the standard required by the Pure Food and Drugs Act. APPEAL from Examiner of Interferences. TRADE-MARK FOR WHEAT-FLOUR. Mr. T. W. Johnson for the Hezel Milling Company. BILLINGS, Assistant Commissioner: This is an appeal by the Hezel Milling Company from the decision of the Examiner of Interferences holding that it is not entitled to register the mark for which it has made application. The interference involves the words "United States Standard" and "Standard Mills," used, respectively, by the Hezel Milling Company and Weidler as trade-marks for wheat-flour. Weidler, the senior party, took no testimony; but being a registrant he is entitled under the statutes to his registration of February 2, 1888, as prima facie evidence of ownership. The Hezel Milling Company took testimony showing use of the mark during the period from 1895 to 1905. Its mark, consisting of the geographical term "United States United States" and the descriptive word "Standard," is registrable, if at all, only under the "ten-years clause of section 5 of the Trade-Mark Act. The Examiner of Interferences held that Weidler's registration was prima facie evidence of ownership and that as no evidence had been produced to show that Weidler was not using the mark between 1895 and 1905 the Hezel Milling Company had not shown that it was the sole user of the mark during that period, and therefore was not entitled to registration. This holding was clearly right. Where a certain condition or state of things of a continuing nature is shown, the presumption of law is that such condition or state continues to exist. (American and English Encyclopædia of Law, p. 1238.) Weidler having registered his mark in 1888, the presumption of law is that he has continued to use it, and it was therefore incumbent upon the junior party, the Hezel Milling Company, to show affirmatively that Weidler had not used the mark during the period from 1895 to 1905 in order to be entitled to registration. Furthermore, even if such non-use by Weidler had been shown, the Hezel Milling Company would not be entitled to registration, for reasons similar to those set out in the decisions in ex parte Alart and McGuire, (C. D., 1907, 409; 131 O. G., 2145,) ex parte Tennessee Brewing Company, (C. D., 1908, 227; 136 O. G., 1999,) and ex parte United States Sanitary Mfg. Company, (C. D., 1908, 230; 137 O. G., 227.) The words "United States Standard" would clearly indicate to purchasers that the flour sold under this brand was of the standard required by the United States Government under the Food and Drugs Act. It is therefore not such a mark as can be registered in this Office, since the placing on this mark of words showing that it had been registered, as required by section 28 of the act of February 20, 1905, would tend to indicate that the Government was guaranteeing that the flour was up to that standard. The decision of the Examiner of Interferences is affirmed. EX PARTE STANFORD. Decided December 18, 1908. 138 O. G., 527. 1. ASSIGNMENT-NO REQUEST THAT THE PATENT ISSUE TO THE ASSIGNEEEQUITABLE TITLE. An assignment in which there is no request that the patent issue to the assignee conveys only an equitable title. 2. ATTORNEYS-OWNER OF EQUITABLE INTEREST MAY NOT CONTROL APPOINTMENT TO EXCLUSION OF APPLICANT. The assignee of an entire interest in the invention may not revoke a power of attorney given by the applicant and appoint one of his own selection where the assignment does not request that the patent shall issue to said assignee. Such an assignment conveys merely an equitable and not a legal title. ON PETITION. RAIL-JOINT. Messrs. Banning & Banning for the applicant. MOORE, Commissioner: This is a petition on behalf of the assignee that a paper purporting to be a revocation of the power of attorney given by the applicant and the appointment of an attorney by said assignee be accepted and that action be taken in accordance with the direction by the assignee's attorney, and, further that the letter signed by the Chief Clerk refusing to accept the power of attorney given by the assignee be canceled. It appears that the above-entitled application was allowed on August 27, 1908. On October 28, 1908, an assignment dated October 22, 1908, was recorded which purported to convey all the right, title, and interest in this application to the Rail Joint Company, a corporation of New York. This assignment contains no request that the patent granted upon this application shall issue to the assignee. Thereafter, however, on November 25, 1908, a final fee of $20 was tendered by the Rail Joint Company by D. P. Wolhaupter. On October 28, 1908, a power of attorney given by the Rail Joint Company to said Wolhaupter was presented. Thereupon Wolhaupter was advised that: The assignment from the Rail Joint Company contains no request that the patent shall issue to the assignee; therefore, it is not regarded as a legal assignment. It is contended in behalf of the assignee that the assignment which was recorded in the Patent Office constituted an assignment of the entire interest in the invention and that it is sufficient under the provisions of Rules 5 and 20 to empower the Rail Joint Company to re21895-H. Doc. 124, 61-2- -2 voke the power of the attorney of record and substitute an attorney of its own selection who is entitled to prosecute the case to the exclusion of the applicant. This contention is not well founded. Section 4895 of the Revised Statutes provides in part: Patents may be granted and issued or reissued to the assignee of the inventor or discoverer; but the assignment must first be entered of record in the Patent Office. In the case of Gaylor v. Wilder (10 How., 480) it was held that where a written assignment contained a request that the patent issue to the assignee such assignment upon the granting of the patent vested the legal as well as the equitable title to the patent in the assignee. Rule 26, which is in accordance with this decision, provides in part that: In case of an assignment of the whole interest in the invention, or of the whole interest in the patent to be granted, the patent will, upon request of the applicant embodied in the assignment, issue to the assignee. In the case of Harrison v. Morton (C. D., 1896, 675; 76 O. G., 1275) the Court said in respect to the provisions of the statute and of this rule: As we have seen, it is required when letters are to be issued to an assignee that the assignment must contain that request, (Rule 26, p. 9;) but it was suggested that such a rule is a mere regulation for the convenience of the Patent Office and was not binding; but the rules established by the Commissioner of Patents "are, until abrogated, as binding as the law itself, not only upon him and his inferior officers, but upon persons doing business with his Department, provided such rules are not in contravention of any statute." (R. S., 1874, sec. 483; 1 Rob. on Pats., p. 84 and note.) It follows from what Chief Justice Taney says in Gaylor v. Wilder, supra, that prior to the issue of Letters Patent to the inventor he has an imperfect inchoate right to its exclusive use, which he may perfect and make absolute by taking the steps required by law, and especially by having Letters Patent issued to him; or he may by an assignment of this inchoate right, coupled with a request to issue letters to his assignee in compliance with Rule 26 of the Patent Office, transfer to such assignee a legal title to such invention. The legal title passes to the assignee under such an assignment, because he has under it, as the inventor had by law, the right to secure letters in his own name. But the only way in which such letters, which are the evidence of a perfect legal title, can be secured by the assignee is by the request of the inventor first, and of his assignees, as the case may be, expressed in the asignment. It is therefore apparent that the assignee of an equitable interest, although it appears to be an entire interest, cannot exclude the inventor who retains the legal title from the control of the application. The practice of refusing to permit the equitable assignee to prosecute the invention to the exclusion of the inventor has for many years been uniformly recognized by this Office. In the case of ex parte McTammany (C. D., 1900, 168; 93 O. G., 751) Commissioner Duell said: Where two instruments are recorded in this Office both of which purport to assign the invention disclosed in an application and only one contains a request |