that the applicant may in the end issue from the Patent Office with a prima facie right.

It would be anomalous in an act purporting to give color of title to confer upon the officer administering the law jurisdiction of other questions of title and not of the fundamental question, viz., whether or not the subject-matter fall within the purview of the law.

I should be reluctant to adopt this construction of the law were the language less clear than I find it. I am unable, therefore, to agree with the applicants that there has been such an essential change in the law as to warrant the Office in registering as a trade-mark matter which the courts would not hold to be such.

With reference to the descriptiveness of the words "time-keeper' in their proposed application there can be little doubt. They are in common use as applied to watches, clocks, and other species of chronometers, and this I do not understand the applicants to deny. The words must, therefore, upon familiar doctrines, be erased from the recital of the essential portion of the mark.

The applicants contend that while the right to the separate use of the word "railway" has been secured to another, that it may yet form a part of their compound trade-mark. If the views above expressed as to the effect of the present law and rules are correct, the essentials of the applicant's mark can comprise no more than the representation of a locomotive with the single word "railway." While I am not prepared to say that a trade-mark registered to another may not be under some circumstances fancifully and arbitrarily compounded with other words and symbols to form a valid trade-mark, I am of the opinion that the use of the word "railway," even when used in connection with the rep. resentation of a locomotive, would be confusing and deceptive to the general purchaser and interfere to that extent with the rights already secured to the prior registrant.

In the case of I. Bush & Co. (10 O. G., 164) it was proposed to register the word "Centennial," which had already been registered by another as one of the essential elements of an otherwise lawful trade-mark. The Commissioner said:

I do not, however, think it a safe practice to permit the registration of a compound trade-mark one of whose distinguishing features has already been appropriated and registered by another as applied to the same class of merchandise. The tendency would be to mislead purchasers as to the true origin of the article sold under such mark, and the policy of the law is to discountenance such a proceeding.

Coggin, Kidder, & Co. (C. D., vol. 16, p. 342) was referred to and approved.

The applicants will be required before registration to erase from their specification and fac-similes all reference to the word "railway."

I approve also the action of the Examiner in requiring the applicants to file a new oath, which shall designate the particular nation or Indian tribe in commerce with which their alleged trade-mark has been used. The statute relating to trade-marks provides, section 3, "that it shall ́

appear to be lawfully used as such by the applicant in foreign commerce or commerce with Indian tribes." It is clearly within the power of the Commissioner, therefore, to require applicants to specify some foreign nation or tribe with which the applicants have commercial relations in order that it may be made to appear that such is the fact. Ex parte Keppler v. Schwarzmann, C. D., May 2, 1881.

The action of the Examiner is affirmed.

LOCKE v. LEVALLEY ET AL.

Decided July 12, 1881.

20 O. G., 671.

1. INTERFERENCE-CONSTRUCTION OF THE ISSUE.

When the declaration of the issue is susceptible of various interpretations, that meaning will be adopted which sustains the interference as declared, and which is most consistent with the specifications of the parties.

2. CONSTRUCTION ALREADY PLACED ON ISSUE BY OFFICE.

The patentee having a separate patent for the invention which the applicant contends is in issue, and which patent was not included in the interference, a construction was thereby placed upon the applicant's claim and upon the issue which is conclusive on all parties.

3. DRIVE-CHAINS-INVENTION STATED.

Gathering the intentions of the parties from the papers on file, without reference to the testimony taken to affect the result of the interference, it is held that the contested invention is a chain link with a central opening provided with an open hook which is adapted, when placed in an unusual position, to be coupled to and uncoupled from other centrally-open links without bending the hooks.

APPEAL from the Examiners-in-chief.

DRIVE-CHAINS.

PATENT of Sylvanus D. Locke, No. 160,107, granted February 23, 1875. Application of Christopher W. Levalley for reissue of Patent No. 181,082, filed May 22, 1879. Reissue patent of William D. Ewart, No. 9,256, granted June 15, 1880.

Mr. R. D. O. Smith for Locke.

Mr. H. H. Doubleday for Levalley.
Mr. J. N. McIntire for Ewart.

MARBLE, Commissioner:

The only question of importance now left in the case is with regard to the scope of the issue, which is defined in the language of Levalley's claim as follows:

A chain-link having a central opening and provided with an open hook cast thereon,

adapted to be coupled and uncoupled from other centrally-open links without bending the hooks, substantially as set forth.

Adopting the obvious rendering of this language, Ewart makes the invention relate to the peculiar construction of the open hook and corresponding end bar, which enables the links to be coupled and uncoupled when placed in an unusual position without bending the hooks.

Levalley, however, has taken his testimony upon the theory that the gist of the invention is the casting of the hook in permanent form to obtain greater strength and more uniformity in the length of the links, and he construes the issue accordingly.

The meaning of the issue upon Levalley's construction is obtained by transposing the order of the words as follows:

A chain-link having a central opening aud provided with an open hook cast thereon without bending the hooks, adapted to be coupled and uncoupled from other centrally-open links.

Referring to the specifications of the parties, of which the claims and the issue are necessarily but an imperfect summary, I find no reason for thus straining the natural sense of the issue. The specification of Levalley professedly relates to an improved construction of detachable links. Stating the nature of the invention generally, he says:

The invention relates to that class of sprocket-wheel chains in which the links are constructed in such manner as to permit the removal or insertion of one or more links in the chain by hand; and consists, in part, in a novel construction of link, hereinafter explained, whereby the liability of accidental withdrawal incident to such construction is greatly diminished, as hereinafter set forth.

The detailed description which follows relates exclusively to the peculiar construction of links, which permits their ready removal from the chain and prevents the accidental displacement of the parts. Stating the manner in which his invention is to be practiced, he says:

In connecting the links together the front faces of the links, with the ends reversed, are held facing each other at an angle of about ninety degrees, more or less, the flattened portion b of one link opposite to the space between the hook and lip of the other, when said bar b is permitted to slip into the space left between said lip and hook, after which a slight turn given to either link permits their being disconnected until they are again brought to the exact position at which they are connected.

There is, it is true, at the end of the specification a passage which describes, by way of amplification, the manner in which the hook part of the link is made:

The link is cast in the form above described, the hook part being formed by means of a core placed in a mold, which also chills it, thereby strengthening the hook and preventing its being straightened or drawn out when in use, as is sometimes done when the hook is made malleable and afterward bent into the required form.

There is nothing in the specification to indicate that this manner of casting the hook here recommended is essential to the practice of the invention. More fatal, however, to the theory of Levalley is the fact that neither the patent of Locke nor of Ewart contains any reference to the manner in which the open hook is formed, while both clearly descrbibe and claim the peculiar joint which forms the essence of the invention

upon Ewart's interpretation. These patents, therefore, would have no standing in the controversy which Levalley proposes, and the institution of such a contest upon the part of the Office would have been a mere blunder.

There can be little hesitation in choosing between the natural inter. pretation of the issue, which sustains the interference as declared, and a forced construction of the same, which, in effect, puts two of the parties out of court. The original understanding of the Office as to the nature of the controversy is placed beyond doubt by the circumstances under which the interference was declared. A patent was granted to Ewart on October 16, 1877, for the very invention which Levalley contends is now at issue, and which was an official announcement, therefore, that the invention is not contained in Ewart's 1874 patent, now in controversy. In placing Levalley's reissue application in interference with the 1874 patent, therefore, a construction was placed upon Lavelley's claim and upon the issue now before me which is conclusive upon all parties to the present contest. The Board, in their opinion, admit the force of this reasoning, but felt at liberty to go beyond the record and try the hypothetical issue between the reissue application of Levalley and the 1877 patent of Ewart, not in controversy.

Gathering the intentions of the parties from the papers on file, without reference to the testimony taken to affect the result of the interference, I find that the contested invention is a chain-link with a central opening provided with an open hook which is adapted, when placed in an unusual position, to be coupled to and uncoupled from other centrallyopen links without bending the hooks.

The lower tribunals and the parties to the case substantially agree that upon this understanding of the issue Ewart is clearly the prior inventor. In this state of facts I do not think it necessary to discuss at great length the history of the respective inventions. I have carefully examined the testimony in the case, and am satisfied that Ewart dis closed the invention in controversy in June, 1873, that he prosecuted the invention with reasonable diligence, and that he perfected the invention and practically operated the same in the field by June of the following year.

The testimony of Levalley shows that he disclosed the invention in October, 1873, and that he subsequently took steps to complete his invention and made application for his patent.

Locke's application was filed December 12, 1874. He has submitted no testimony, and must be restricted to his record date.

W. D. Ewart, therefore, is adjudged the prior inventor.

LEVALLEY V. EWART.

Decided July 12, 1881..

20 O. G., 672.

PRIOR INVENTOR-ABANDONED EXPERIMENT.

Random experiments, doubtful in result, abandoned for years, and only revived under the strong stimulus of another's success, do not afford the character of proof necessary to the overthrow of a patent.

APPEAL from the Examiners-in-Chief.

LINKS FOR CHAINS.

APPLICATION of Christopher W. Levalley filed May 26, 1879. Patents of William D. Ewart of March 6, 1877, Nos. 188,114, 188,115, and 188,116, filed November 20, 1876, and 196;115.

Mr. H. H. Doubleday for Levalley.

Mr. J. N. McIntire for Ewart.

MARBLE, Commissioner:

The subject-matter in interference is

1. A chain-link provided with a projecting spur adapted to support a carrier.

2. A chain-link provided with angular supports adapted to receive and sustain a carrier.

3. A chain-link provided with an upward projectoin adapted to support a carrier above the plane of the bar which connects the said link with au adjacent link.

4. A chain-link provided with an open hook cast thereon, in combination with a keeper adapted to prevent the escape of the next link of the series from the open end of the hook.

The testimony taken by Levalley in the parallel case of Locke v. Levalley v. Ewart is, by stipulation, introduced into the present case.

An examination of the testimony shows that Levalley made several sample links in brass in the fall of 1872, exhibiting the various features enumerated in the issues. These links, according to one witness, were coupled into a short chain and tested in the workshop, but were never put to any practical use. This form of chain was soon discarded, the links already made were laid aside and lost or melted up, and succeeding styles of chain made in the further prosecution of Levalley's experiments exhibited the various defects which it is now alleged these links successfully overcame. Levalley took no step to revive his invention until eight years afterward, when he had become involved in controversy with Ewart's patents. All physical traces of his invention have in the mean time passed away, and the recollection of his witnesses is now aided by illustrative links, made for the purposes of the occasion. These links show a projecting spur; but it is noticeable that none