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556 Off. Gaz. Pat. Office 1 (1943)

handle is hein.intprop/uspagaz0694 and id is 1 raw text is: Patents Nos. 2,333,080 to 2,333,623 THE OFFICIAL GAZETTE OF THE United States Patent Office Vol. 556-No. 1 TUESDAY, NOVEMBER 2, 1943 Price-$16 per year The OFFICIAL GAZETTE is mailed under the direction of the Superintendent of Documents, Government Printing Office, to whom all subscriptions should be made payable and all communications respecting the Gazette should be addressed. Issued weekly. Subscriptions, $16.00 per annum, including annual index, $18.75; single numbers, 35 cents each. PRINTED COPIES OF PATENTS are furnished by the Patent Office at 10 cents each. For the latter address the Commis- sioner of Patents, Washington, D. C. CIRCULARS OF GENERAL INFORMATION concerning PATENTS or TRADE-MARKS will be sent without cost on request to the Commissioner of Patents, Washington, 0. C. CONTENTS Page ISSUE OF NOVEMBER 2, 1943 --------------------------------- 1 OPINION OP ACTING COMPTROLLER GENERAL -----------------1 ADZUDICATED PATENTS --------------------------------------- 1 APPLICATIONS UNDER EXAMINATION ------------------------- 2 DEcISIONs or THE U. S. COURTS- Paulson v. Hyland ------------------ ; ------------------ a PATENT SUITS ------------------------------------------------ 5 ADVERSE DECISIONS IN INTERFERENCE ----------------------- 6 DISCLAIMERS -----------------------------------------6 NOTICES OF CANCELLATION ----------------------------------- 6 TRADE-MARES PUBLISHED (129 APPLICATIONS) --------------7 TRADE-MARK REGISTRATIONS GRANTED ------------------ 22 TRADE-MARK REGISTRATIONS RENEWED -------------------- 27 REISSUES -----------------------------------------31 PATENTS GRANTED- ................................. 32 DESIGNS ------------------------------------------------------- 161 November 2, 1943 Trade-Marks - 1----- l19--No. 404,053 to No. 404,171, inclusive. T. M. Renewals ---- 87 Reissues ------------ 2-No. 22,388 to No. 22,389, inclusive. Patents ------------ 544-No. 2,333,080 to No. 2,333,623, inclusive. Designs ------------ 33--No. 136,581 to No. 136,613, inclusive. Total --------- 785 Opinion of Acting Comptroller General Return of Appeal Fee COMPTROLLER GENERAL OF THE UNITED STATES, Washington 25, Sept. 83, 19.3. The Honorable, The Secretary of Commerce. My dear MIr. Secretary: I have your letter of Septelnber 3, 1943, as follows: Rule 195 of the Rules of Practice of the United States Patent Office reads in part as follows: 'Money paid by actual mistake, such as payment in excess, or when not required by law, or by neglect or mis- information on the part of the office, will be re- funded * * *' This rule is based upon the Appropriation Act of March 6, 1920 (41 Stat. 512; U. S. C., title 35, section 79), which authorizes the Commissioner of Patents 'to pay back any sum or sums of money paid to him by any person-by mistake or In excess of the fee required by law.' Section 4909 R. S. (U. S. C., title 35, section 57) pro- vides that: 'Every applicant for a patent or for the reissue of a patent, any of the claims of which have been twice re- jected may appeal from the decision of the Primary Examiner to the Board of Appeals, having once paid the fee for such appeal.' The statutory fee for taking such an appeal Is $15.00. (4934 R. S.: U. S. C., title 35, section 78.) It sometimes happens that after the filing of an appeal the Primary Examiner withdraws the rejection from which the appeal has been taken,.In which .evefit the appeal Is not forwarded to nor considered by the Board of-Appeals. In other words, the Patent Officeyehdqes no -sbrvici i connection with the appeal other tii recelving,the'papers and placing them in the file. . -e - Disregarding possible cases In which the rejecti6n of claims may have been due to Inadvertence, and. considering only those cases In which the rejection was meiely erroneous In the sense that the Examiner would probably have been reversed by the Board of Appeals had that tribunal considered the appeal, a ruling is requested as to whether or not the Commissioner of Patents may prot)erly return the appeal fee under the stated circum- stances. Since It Is clear that under the circumstances stated in your submission the payment of the appeal fee Is re- quired by law, and Is not In excess of the amount fixed by statute, nor Induced by neglect or misinformation on the part of the Patent Office, within the terms of the act of March 6, J920, and the applicable Rule 195,'cited by you, there would appear to be no authority for the return of the appeal fee unless It can be said to have been paid by mistake on the part of the applicant. There is nothing In the facts presented by you whvch suggests that the rejection of the claim by the Primary Examiner Is not bona fide, and It is assumed that the subsequent withdrawal of the rejection resulted from the further consideration of the claim by .the'.Exahiner and the conclusion, upon such reconsideration, that the original action was erroneous. Even If it correctly could be said that the rejection of the. claim by the Primary Examiner was a mistake, yet that fact Is not controlling, since by the plain language of the said act of 1920 It is applicable to a mistake relating to the payment, only. Hence, it would seem that a determination of the question must depend upon the factual situation existing when the claim was rejected. At that time the applicant desired to file an appeal from the adverse decision with which he then was confronted; and, In order to do so, he paid the fee required by law. There can be no doubt that the fee was paid Intentionally by the applicant for the purpose of having the appeal considered by the Board of Appeals; that Is to say, the payment of the fee was proper and was not, in any sense, made by mistake. While the subsequent withdrawal of the rejection by the Examiner obviated the necessity for an appeal, there can be no sound basis for the view that such action has the retroactive effect of converting a payment proper when made Into a payment made by mistake. Accordingly, It must be held that a refund of the appeal fee under the circumstances stated is not authorized. Respectfully, FRANK L. GATES, Acting Comptroller General of the United States. Adjudicated Patents (C. C. A. N. H.) Abbott patent, No. 2,160,810, for automatic machine to wind filling wound bobbins used in loom shuttles, claims 14 and 28, Held Invalid. Abbott Mach. Co. v. Universal Winding Co., 137 F.(2d) 166. 1

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