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The Supreme Court has broad supervisory power over the judgments of the lower federal courts. United States v. Munsingwear, 340 U. S. 36, 40. However, as a necessary consequence of its decision in Baldwin Co. v. Howard Co., 256 U. S. 35, the Supreme Court has strictly adhered to a hands-off policy with respect to the judgments of this court relative to patentability. Although there is none to call our power to account, the court should not ignore or reject the vital importance of the cited rule.

MEMORANDUM OF DECISIONS

DISMISSED

SEPTEMBER 29, 19501

Dwinell-Wright Co. v. Emery & Kavanagh Co., etc. (No. 5814).-Trade-mark for fresh grapes, fresh lettuce.

ОСТОВЕВ 31, 1950

In re Haensel (No. 5798).—Improvement in aromatization process.

In re Wanner (No. 5818).-Improvement in devices for electro-mechanical differential power transmission with speed changing gear.

NOVEMBER 13, 1950

Traford Fabrics, Inc. v. Goodman et al. (No. 5820).—Trade-mark for fabrics of rayon, nylon, etc.

MARCH 7, 1951

National Cranberry Ass'n. v. California Consumers Corp. (No. 5836).—Trademark for fresh frozen vegetables.

JUNE 26, 1951

J. L. Ferguson Co. v. New Jersey Machine Corp. (No. 5856).—Trade-mark for printing machines for applying code indications to labels.

1 Released November 6, 1950.

1213

INDEX-DIGEST, VOLUME 38

ABANDONED EXPERIMENT, see also 134, 135.

1. Device was not abandoned experiment, although 13 months passed
between testing and filing of patent application, since delay was oc-
casioned by seeking approval of device by underwriters and by doubt as
to whether another should be joined as joint inventor. Ranney v.
Bridges, 1044.

ABANDONMENT.

2. One who files application and makes necessary and regular oath
thereto is presumed to be inventor of claimed subject matter and entitled
to invention where application has not been abandoned and where there
is no evidence to overcome presumption. Ronay v. Hediger, 1074.

3. Invention disclosed, but not claimed, in applicant's prior patents
was dedicated to public, even though application claiming such inven-
tion was filed within year after patents issued; presumption of dedica-
tion may be rebutted when application is for independent and distinct
invention from that claimed in patent, but that is not instant case. In
re Bersworth, 1167.

ACQUISITION OF MARKS, see 226–230.

AFFIDAVITS, see also 30, 45, 104, 223, 224.

4. Sole applicant failed to make showing necessary to establish that
application is continuation-in-part or division of joint copending appli-
cation, which later matured into patent, disclosing but not claiming
subject matter of sole application, since oath to sole application did
not state that assertion of joint invention implicit in joint application
was due to inadvertence or mistake, did not state when it was discovered
that he was sole inventor, and did not explain why 27 months elapsed
between filing of applications; patent is valid reference since applicant
must overcome it by affidavit under old Rule 75, but did not do so.
In re Strain, 933.

5. Under some circumstances difficulties may arise in obtaining affi-
davit anticipating references, but rules may not be predicated upon
mere expediency to exclusion of a requisite principle of procedure. In
re Strain, 933.

6. Affidavits to show that specification's disclosure is sufficient need
not be considered by Patent Office. In re Smyth, 1130.

7. Disclosure is insufficient although knowledge of teachings of prior
art, coupled with disclosure of specification, is sufficient to enable those
skilled in art to practice invention; it is not permissible to accept
affidavits to establish facts which specification itself should recite. In
re Smyth, 1130.

AGGREGATION OR COMBINATION, see 153-157.
ANTICIPATION, see 158–168.

APPEALS TO COURT, see also 106-112, 231–236.
In general.

8. Heretofore, court has held that if true generic claims were found
allowable, Markush type of claims in same application should be re-
jected; Commissioner's Notice, 627 O. G. 304, instructing examiners not
to reject Markush type claim merely because of presence of true genus
claim which included former in its scope is based on sound reasoning

1215

APPEALS TO COURT-Continued

In general-Continued

and should be applied to all app'ications not finally determined on date
of notice; but instant application was appealed to court prior to such
date, so rejection of Markush type claim is affirmed; since Board's
decision is reversed as to prior art rejection and case will again be
within Office's jurisdiction for further action, it seems reasonable to
court that rejection of Markush claim should be withdrawn. In re
Greider et al., 803.

9. Rejection of Markush claims on ground that true generic claims-
appear in application is affirmed, even though subsequent change in
Patent Office practice would make claims allowable, since Board's
decision is reversed as to rejection on prior art, so application will be
within Patent Office's jurisdiction, and it is reasonable that rejection
as to Markush type should be withdrawn by Office. In re Greider et al.,
854.

10. It is not good form for reasons of appeal to begin with "The
Patent Office erred" since appeals come to court from specific tribunals
of Patent Office named by statute. In re Josserand, 994.

11. After Board affirmed decision rejecting claims, but before appeal
therefrom was perfected, Commissioner entered order to show cause
why application should not be stricken from files; although applicant's
reasons of appeal assign error respecting such order, court has no
jurisdiction to pass upon order; if any action has been taken and
completed upon it so as to render it appealable, record does not show it.
In re Josserand, 994.

Briefs.

12. Reason of appeal not discussed in brief is assumed to have been
abandoned. In re Heritage, 780.

13. Court permits appellant in interference appeal to file reply to
appellee's brief and permits appellee to file reply to appellant's reply.
Kleinman v. Steinbach, 924.

14. Applicants' brief did not discuss ground of rejection as to specifie
claim, so court will not consider rejection. In re Dalton et al., 953.
Dismissing and remanding.

15. Board awarded priority to senior party on ground that junior
party had not reduced to practice prior to senior's filing date; since it
was unnecessary to do so, Board did not mention evidence presented by
senior to prove conception and reduction prior to his filing date; thus,
if court should find that junior had made out reduction, it should have
to remand to Patent Office for consideration of senior's record. Pines v.
McAllister, 981.

Issues to be determined-Ex parte cases.

16. Examiner's statement as to disclosure of original specification must
be accepted as correct where question was not referred to in Board's deci-
sion, no reason of appeal refers to it, an applicant's brief does not
discuss it. In re De Vaney, 735.

17. Although Board's decision criticized form of claims and although
applicants' brief on appeal to court responds to criticism, Board's deci-
sion stated that Board would consider claims in manner that "examiner
seemed to have understood as intended by applicants" since examiner
did not object to form of claims; hence, it is not incumbent upon court
to settle any issue as to form of claims, since, in view of Board's state-
ment, any question as to form of claims became moot; also, no reference
is made to it in reasons of appeal. In re Pappas et al., 746.

18. Reason of appeal not discussed in brief is assumed to have been
abandoned. In re Heritage, 780.

19. Claims rejected as not readable on elected species are not before
court on merits. In re Greider et al., 803.

20. Claims rejected as being directed to nonenumerated species are
not before court on merits. In re Greider et al., 854.

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