tions lasting until January, 1907, finally purchased the same on behalf of appellant company. An application, witnessed by De Vilbiss, was then filed by Pool, and an assignment made to appellant company. Subsequently an interference, the issue of which was substantially the same as that now before us, was declared between the Pool application and appellee's patent. This interference was conducted by the appellant company, with the knowledge of De Vilbiss, who testified on behalf of Pool. Yet De Vilbiss did not make known his claim of invention or file his application until after decisions adverse to Pool had been rendered in the interference proceeding by both the Examiner of Interferences and the Board of Examiners in Chief. That interference subsequently terminated in favor of appellees here. Pool v. Dunn, 34 App. D. C. 132.

It is difficult to believe that had De Vilbiss regarded his application of 1904 as a reduction to practice of the invention here in controversy, he would thereafter have negotiated the purchase of the Pool invention for appellant company, have filed an application therefor, and have assisted in the prosecution of the interference proceeding.

We are therefore of opinion that De Vilbiss should be restricted to the date of filing his application here in issue for a constructive reduction to practice. Even though De Vilbiss was the first to conceive, he was the last to reduce to practice, and there is no claim advanced on his behalf that he was diligent at the time appellee entered the field. It is unnecessary to consider the other questions raised by appellee in this case.

The decision of the Commissioner of Patents is affirmed, and the clerk is directed to certify these proceedings, as by law required. Affirmed.

Statement of the Case.

[43 App.

GOLDBERG v. DAYTON.

PATENTS; INTERFERENCE; REDUCTION TO PRACTICE.

In an interference proceeding involving the invention of a carbureter having means for locking manually operated devices with an auxiliary air inlet valve, it was held that the construction of one of the parties claimed to be a reduction to practice did not read on the issue because it had no separate means for locking the valve when closed, while the evidence showed that the other party successfully reduced to practice prior to his rival's conception and actual reduction to practice.

No. 943. Patent Appeals. Submitted March 8, 1915. Decided

March 29, 1915.

HEARING on an appeal from a decision of the Commissioner of Patents in an interference proceeding.

Affirmed.

The COURT in the opinion stated the facts as follows:

This is an interference proceeding having the following issue in three counts:

"1. A carbureter including in combination a fuel nozzle, a main air inlet, an auxiliary air inlet, a valve for controlling said auxiliary air inlet, manually operated devices for holding said auxiliary air inlet valve closed against movement under the suction stroke of the engine, and means for locking said manually operated devices with said valve in closed position.

"2. A carbureter including in combination a fuel nozzle, a main air inlet, an auxiliary air inlet, a spring controlled valve for controlling said auxiliary air inlet, an arm and manually controlled means for moving said arm against said valve for holding the same from movement under the suction stroke of the engine, and yielding means operating to hold said arm in contact with the valve.

"3. A carbureter including in combination a fuel nozzle, a main air inlet, an auxiliary air inlet, a valve for controlling said auxiliary air inlet, and manually operated means for locking itself in position, when operated, to hold said auxiliary air inlet valve closed against movement under the suction stroke of the engine and manually operable to release the auxiliary valve."

James M. Dayton filed his application December 1st, 1910, claiming conception, disclosure, and reduction to practice February 1st, 1909. John S. Goldberg filed March 9, 1911, claiming conception, disclosure, and reduction to practice April 1st, 1908.

The Examiner of Interferences found that Dayton had conceived the invention of count 1 in the summer of 1909, but had not shown reduction to practice. He awarded priority to Goldberg on all three counts.

On an appeal to the Examiners in Chief they reversed the Examiner of Interferences as to count 1, awarding priority to Dayton as to that count, and affirming the award of 2 and 3 to Goldberg.

The Commissioner of Patents affirmed this decision on appeal. Dayton has taken no appeal from the Commissioner, and counts 2 and 3 are finally determined. Goldberg appeals from the award of count 1 to Dayton.

Messrs. Brown, Hanson, & Boettcher for the appellant.

Messrs. Sturtevant & Mason for the appellee.

Mr. Chief Justice SHEPARD delivered the opinion of the Court:

The Commissioner held that Goldberg's construction of 1908 does not read on count 1 because it has no separate means for locking the value when closed. The invention is specific and narrow. The count originated with Dayton, and follows his

disclosure. We concur in the reasoning of the Commissioner on this point.

Goldberg did not conceive a device answering all of the counts until June 10, which was reduced to practice about April 15, 1910. Dayton testified to work done on a Breese carbureter early in 1909, including the features of the auxiliary valve; but the proof of this is not of a character to establish it. He, however, made another device in the summer of 1909, which was operated successfully on a motor car during that summer, and until replaced by an improved carbureter in the spring of 1910. Weston's testimony shows that this carbureter had all the requisites of count number 1. He described it as follows:

"In the regular air opening is a pin which carries a lever bent in such form to come in contact with the plunger on the spring case when operated by a wire which extended through to the front of radiator on the automobile, and while this lever was held in contact with the plunger it held the auxiliary valve closed. There was also a spring attached which released said lever when the wire was unhooked from the front of the radiator. There was a bent piece of wire bent in such form as to hook over the front of the radiator and hold the air valve closed with a spring interposed between the carbureter and the radiator to allow this lever to come in contact with the plunger, and at the same time the wire would be always taut."

His testimony shows that the carbureter worked satisfactorily all of this time on Weston's car. This reduction to practice of the invention of the count antedated the conception and reduction to practice by Goldberg in 1910, and entitles Dayton to the award.

We find no error in the final decision, and it is affirmed.

The clerk will certify this decision to the Commissioner of Patents, as required by law.

Petition for rehearing overruled April 17, 1915.

Affirmed.

ANGLO-AMERICAN INCANDESCENT LIGHT COMPANY v. GENERAL ELECTRIC COMPANY.*

TRADEMARKS; GOODS OF THE SAME DESCRIPTIVE PROPERTIES.

1. Two trademarks may be said to be appropriated to merchandise of the same descriptive properties, within the meaning of the trademark act of Congress, when the general and essential characteristics of the goods are the same. (Following Phonix Paint & Varnish Co. v. John T. Lewis & Bros. 32 App. D. C. 285); and no trademark may be registered when it is appropriated to goods of the same general qualities or characteristics as those of the goods to which another trademark has been appropriated. (Citing American Stove Co. v. Detroit Stove Works, 31 App. D. C. 304.)

2. Incandescent gas mantles and incandescent electric lamps are goods of the same descriptive properties within the meaning of the trade. mark act of Congress; and where the word "Mazda" has been registered as applied to such lamps, the word is not registerable by another who seeks to use it as a trademark for such mantles. Walter Baker & Co. v. Harrison, 32 App. D. C. 272.)

(Citing

No. 952. Patent Appeals. Submitted March 9, 1915. Decided
March 29, 1915.

HEARING on an appeal from a decision of the Commissioner of Patents sustaining an opposition to an application for the registration of the word "Mazda" as a trademark for incandescent gas mantles. Affirmed.

The facts are stated in the opinion.

Mr. George H. Parmelee, Mr. Clarence P. Byrnes, Mr. F. S. Appleman, and Mr. B. G. Foster for the appellant.

*Trademarks—Different Application.-For cases passing upon the use trademark or tradename on articles other than those to which it is applied by the owner, see notes to Virginia Baking Co. v. Southern Biscuit Works, 30 L.R.A. (N.S.) 167 and Atlas Mfg. Co. v. Smith, 47 L.R.A. (N.S.) 1002. Vol. XLIII.-25.