CONOVER et al. v. WOHL. Court of Appeals of District of Columbia. 1. Patents May 7, 1928. No. 2047. 91(1)—Rule as to burden of proof is not affected by issue of patent to senior party at time junior party's application was pending. Where application of junior party was pending at time patent issued to senior party, the rule as to burden of proof is not affected by the issue of patent. 2. Patents 97-Citizen of free city of Danzig held entitled to privileges of law relating to patents (Nolan Act [35 USCA §§ 80-87]). Citizen of free city of Danzig, filing application in Germany for patent, is entitled to privileges afforded by Nolan Act (35 USCA §§ 80-87; Comp. St. §§ 9431a-9431h). 3. Patents 91 (4) Junior party held properly awarded priority of invention relating to method of oxidizing anthracene. Junior party to interference proceeding held properly awarded priority of invention relating to method of oxidizing anthracene. oxidation of anthracené in the presence of an oxide of vanadium as a catalyst. "The issue is stated in two counts reading as follows: "1. The method of oxidizing anthracene, which comprises subjecting anthracene in the vapor phase to oxidation by oxygen in the presence of an oxide of vanadium as a catalyzer, at a temperature of about 300°C. to 500°C. "2. The method of oxidizing anthracene, which comprises passing a mixture of anthracene in the vapor phase, and an oxygen vanadium as a catalyzer heated to a temperacontaining gas into contact with an oxide of ture of about 300°C. to 500°C. whereby anthraquinone is produced." [1] Appellants, Conover & Gibbs, are patentees. The Wohl application was pending, however, at the time the patent to appellants was issued; hence the rule as to burden of proof is not affected by the issue of the patent. [2] The junior party, Wohl, relies for constructive reduction to practice on the filing of an application in Germany on June 22, Appeal from the Commissioner of Pat- 1916. The earliest date alleged by the senior ents. Interference proceeding between Courtney Conover and another and Alfred Wohl. Decision for the latter, and the former appeal. Affirmed. A. J. Decker, of Washington, D. C., for appellants. W. E. Warland, of New York City, for appellee. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. VAN ORSDEL, Associate Justice. This is an appeal from the decision of the Commissioner of Patents in an interference proceeding awarding priority of invention to the junior party, Wohl. parties, Conover & Gibbs, was October 15, 1916. It follows, therefore, that, if appellee is entitled to the date of the German patHis application was filed in this country Auent, he is entitled to an award of priority. gust 11, 1921. Being a citizen of the free city of Danzig, he is entitled to the privileges afforded by the Nolan Act of March 3, 1921, 41 Stat. 1313 (35 USCA §§ 80-87; Comp. St. §§ 9431a-9431h). [3] Conover & Gibbs urge that the German application does not disclose a process within the terms required by the counts. This contention has been overruled by all three tribunals of the Patent Office, and as the invention is a highly technical one we are disposed to conform to their opinion. A careful examination of their analysis justifies this conclusion; and, since the party Wohl is en The invention is described in the opinion titled to his German filing date for conof the Commissioner as follows: "The invention relates to catalytic oxidation of organic compounds and specifically to the production of anthraquinone by the structive reduction to practice, he is entitled to the award of priority. The decision of the Commissioner is affirmed. 26 F.(2d) 567 FORD MOTOR CO. v. PARTRIDGE, SINGER belief that the goods of the said Partridge, & BALDWIN, Inc. Court of Appeals of District of Columbia. Submitted March 12, 1928. Decided May 7, 1928. No. 2048. 1. Trade-marks and trade-names and unfair competition 452-Trade-mark "Warford" on automobile transmissions held not subject to cancellation on ground that it is appropriation of corporate name "Ford." Use of word "Warford" as a trade-mark on automobile transmissions held distinctively different from word "Ford" standing alone, obviating any probability of confusion either as to origin or reputation, and did not constitute an appropriation of corporate name, so as to be subject to cancellation. 2. Trade-marks and trade-names and unfair competition 452-Trade-mark "Warford" on automobile transmissions held not so simi lar to word "Ford" as to require cancellation. Trade-mark "Warford," used on automobile transmissions, held not so similar to trade-mark "Ford" of the Ford Motor Company as to require its cancellation, because liable to cause confusion in minds of public. Appeal from Commissioner of Patents. Application by the Ford Motor Company for the cancellation of a registered trademark of Partridge, Singer & Baldwin, Inc. From a decision dismissing the petition, petitioner appeals. Affirmed. C. R. Halbert, of Detroit, Mich., E. S. Rogers, of Chicago, Ill., and C. M. Thomas and F. D. Thomas, both of Washington, D. C., for appellant. D. L. Morris, of Washington, D. C., for appellee. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. VAN ORSDEL, Associate Justice. This appeal is from the decision of the Commissioner of Patents dismissing appellant's petition for the cancellation of the registered trade-mark of appellee company, consisting of the word "Warford," used on automobile transmissions. Cancellation is sought first on the ground that the registered mark has for "its principal characteristic and predominating feature the word 'Ford,' which is the principal characteristic and predominating feature of the Ford Motor Company's corporate name"; and, second, that the registered mark "is so similar to the trade-mark of the Ford Motor Company as to be likely to cause confusion in the minds of the public, and is calculated to deceive and mislead the public into the Singer & Baldwin, Inc., are produced and sold by the Ford Motor Company." [1] We agree with the decision of the Commissioner that the last syllable in registrant's mark is a word in common use, and is the same as the ending of many surnames, and is not such an appropriation of appellant's corporate name as to justify legal intervention, and that the appearance and pronunciation of the word "Warford" is so distinctively different from the word "Ford" standing alone as to obviate any probability of confusion either as to origin or reputation. [2] For the same reason the second ground advanced in support of the petition for cancellation was properly denied by the tribunals below. The testimony discloses the use of registrant's mark since January, 1922, and the goods manufactured are intended for use and sold by dealers for use on Ford automobiles, and, though appellee company in the meantime has built up a business of approximately $7,000,000, no evidence was submitted of actual confusion of either goods or origin. Neither are we of opinion that the marks are so similar as to probably lead to confusion. The decision of the Commissioner is affirmed. In re WILLIS. Court of Appeals of District of Columbia. Submitted March 14, 1928. Decided May 7, 1928. I. Patents No. 2052. ~43-Application for design patent on tapering grip vacuum cleaner handle held properly denied for want of novelty. Application for design patent on tapering grip handle for vacuum cleaner held properly denied for want of novelty; substantially similar handle being shown by Kirby's patent of June 10, 1913. 2. Evidence 19-It is common knowledge that vacuum cleaner handle with inclined curve or straight grip is old in arts. It is within common knowledge that handle for vacuum cleaners with inclined curb or straight grip is old in the arts. 3. Patents 28-Application for design pat ent on tapering grip vacuum cleaner handle held properly denied, as plainly utilitarian, not ornamental. Application for design patent on tapering grip handle for vacuum cleaner held properly de nied, as presenting no pleasing or ornamental effect to eye, but simply and plainly utilitarian. Appeal from the Commissioner of Pat ents. Application by Olo C. Willis for a patent. From a decision of the Commissioner of Patents, denying the application, the applicant appeals. Affirmed. A. L. Lawrence, of Cleveland, Ohio, for appellant. T. A. Hostetler, of Washington, D. C., for Commissioner of Patents. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Jus tices. MARTIN, Chief Justice. The appellant, Willis, claims to be the inventor of a new type or style of handle for a suction cleaner, and he has applied for a design patent therefor. The design is thus described in the application, to wit: "This design is characterized by a gradually tapering grip portion shaped to fit the hand and merging into an annular shoulder; said grip portion being at an angle with the lower portion of the handle, to which is attached a mounting plate along its underside." The application was denied by concurring decisions of the Patent Office, upon the ground that the design is not novel nor ornamental. denied. A tapering grip handle substantial[1-3] We think the application was rightly ly similar to applicant's is shown by reference ence to Kirby's patent, issued June 10, 1913. In Clements v. Pittsburgh Electric Specialties Co. (C. C. A.) 294 F. 279, it is held that a handle with an inclined curve or straight grip is old for vacuum cleaners, and is not patentable. It is indeed well within common knowledge that such construction is old in the arts. Towne Steering Wheel Co. v. Lee (C. C. A.) 199 F. 777. We think that the present design presents no pleasing or ornamental effect to the eye, but is simply and plainly utilitarian. In this particular it differs from the articles involved in the Grigsby Case, 5 F. (2d) 117, 55 App. D. C. 294, and in the Drew Case, 4 F. (2d) 958, 55 App. D. C. 291. The decision of the Commissioner of Patents is affirmed. 26 F.(2d) 569 MCCREADY v. SOUTHERN PAC. CO. Circuit Court of Appeals, Ninth Circuit. May 28, 1928. Rehearing Denied July 2, 1928. No. 5270. 1. Electricity 19(6)-Owner's negligence in maintaining charged wires in unfinished building held for jury, as respected injury to employee of contractor coming in contact therewith. In action to recover damages for personal injuries sustained by employee of contractor coming into contact with charged electric wires placed in building before its completion by owner, negligence of owner in maintaining wires in such condition held for jury. 2. Negligence 32(1)—Owner, as respects invitees, is under duty to exercise reasonable and ordinary care to see that premises are free from danger. In a case of invitees in a strict technical sense, as where persons come upon property for business or pleasure in response to a general implied invitation of owner or occupier, the latter is under a duty to exercise reasonable and ordinary care to see that premises are free from danger. 3. Negligence ~32 (2)-Owner has duty to refrain from subjecting to unnecessary peril employee of contractor working on unfinished building. Where employee for contractor constructing building was by virtue of his employment in privity with contractor, with right to be and to work in and about unfinished building, owner thereof had duty to refrain from subjecting him to unnecessary peril to as great extent as duty in that respect toward contractor. 4. Negligence 32(1)-Owner has duty to refrain from affirmatively creating danger to workman constructing building. Owner of building, though being under no affirmative duty to keep premises safe for workman during its construction, nevertheless has duty to refrain from affirmatively creating a danger. 7. Negligence 66(2), 71-Recovery for injury is not barred if injured person might reasonably expect to avoid danger or where way used was only way. Where, by the exercise of care proportionate to danger, one might reasonably expect to avoid the danger, or if reasonably prudent men might differ as to propriety of encountering it, or where the way used is the only way, a recovery for injury sustained is not barred. In Error to the District Court of the United States for the Southern Division of the Southern District of California; Edward J. Henning, Judge. Action by L. T. McCready against the Southern Pacific Company. Judgment of involuntary nonsuit, and plaintiff brings error. Reversed with directions. Bertrand J. Wellman, of Los Angeles, Cal., for plaintiff in error. W. I. Gilbert, of Los Angeles, Cal., for defendant in error. Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges. DIETRICH, Circuit Judge. Plaintiff brought this action to recover damages for personal injuries, and, from a judgment of involuntary nonsuit at the close of his case, he appeals. At the time of his injury, he was employed as a carpenter by the C. A. Fellows Construction Company in the erection of a new shop building at Los Angeles for the defendant railroad company; the construction company being an independent contractor. The building was to be 75 feet wide and 480 feet long, and, though to be a single rectangular structure when finished, it was constructed in two units. The walls were of brick, with large window spaces. About 25 feet above the floor, and 6 or 8 feet from each side wall was an I-beam extending the full length of the building. These beams carried rails upon which traveled a heavy crane beam extending from one I-beam to the other; the crane being designed for the moving of ponderous materials and machinery, the power therefor being electrically supplied. At the time of the accident, the westerly half of the structure was finished, and had been turned over to the railroad company. The easterly half was nearing completion, but considerable work still remained to be done. The plaintiff and other carpenters were, under their employers' directions, engaged in removing interior scaffolding which had been erected along the side walls of the unfinished unit for the use of brick premises as that of a mere invitee, defendant contends that its only duty was to notify him that the wires were dangerous. In the brief it thus states its position: "The premises upon which the accident occurred and the charged trolley wire were the private and exclusive property of the defendant. It had the right, as against those invited thereon and licensees and trespassers, to maintain the property in such condition, dangerous or otherwise, as it saw fit, and to invitees it owed only the duty of disclosing such dangers as were not open and patent, when the invitee might choose to enter or refuse to enter, as he saw fit." layers and other workmen in constructing [1] Classifying plaintiff's status on the the walls, which were then complete. The scaffolding consisted of long 2x6 timbers, set upright against the wall at short intervals, and crosspieces attached thereto at one end and at the other fastened to the I-beam by means of cleats; and upon these crosspieces rested a floor of heavy loose boards. The evidence tends to show that the defendant, acting directly and not through the contractor, had installed along and in close proximity to the I-beams, by means of brackets or arms attached thereto, electric wires for the transmission of current to operate the crane. For some time there was no connection between these lines in the finished unit which was in use, and those in the unfinished unit, but two or three days prior to the accident connection had been made, so that, when the current was turned on, it passed through the entire length of the building, including the unfinished portion. No reason is disclosed by the record for making the connection before the easterly portion was finished and turned over to the owner. The defendant put up conspicuous notices to the effect that the wires carried a current and were dangerous. Desiring to remove the scaffolding, the contractor's foreman notified representatives of the defendant and sought to have the current temporarily cut off, but his requests were refused; and finally, selecting plaintiff and others of the more experienced workmen, he assigned to them the task of taking down the scaffolding, at the same time giving them appropriate warnings that they should exercise care to avoid injury from the wires. In the course of this work, the plaintiff, while standing on one of the I-beams and holding one end of a crosspiece, which he had just detached from the I-beam, to keep the other end, still attached to the upright, from falling against the wall windows, was thrown from his balance by a sudden and unexpected slipping of the attached upright, and falling came into contact with the trolley wires. As a result he suffered the loss of an arm, together with other injuries. By its answer defendant denied negligence and affirmatively pleaded contributory negligence and assumption of risk; but, prior to the second trial of the case, the one here involved, it dismissed the latter plea. The questions for consideration therefore are whether the facts as above recited make a prima facie case of actionable negligence, and, if so, whether they disclose such contributory negligence as in law bars recov · ery. [2, 3] As applied to the conditions here, we can assent to neither such an unqualified statement of the law nor to the assumption of facts. We do not recognize it to be a universal rule that an owner who invites the public to come upon his premises for business or pleasure may, in the absence of reasonable necessity, maintain thereon dangerous agencies, as wires charged with deadly currents of electricity, in such places as to endanger life and limb, and escape liability by maintaining danger signals or otherwise advising the public. Owing to inadvertence, momentary forgetfulness, a misstep, or an unexpected emergency, the daily path of a citizen is, at best, subject to many hazards necessarily incident to the legitimate employment of forces and agencies which contribute to our needs or convenience, and there should be no disposition to approve their multiplication by the maintenance of unnecessary pitfalls, where red flags will at most only reduce, but not remove, the peril. What reasons, if any, the defendant here may have had for connecting up the lines and sending the deadly current through the unfinished unit where men were at work, we are not advised, but, as we have the record, the unexplained refusal to shut off the power until the scaffolding could be removed imports little less than a wanton disregard for human life. In a case of invitees in a strict technical sense, as where persons come upon property for business or pleasure in response to a general implied invitation of the owner or occupier, the latter is under a duty to exercise reasonable and ordinary care to see that the premises are free from danger. Thompson on Negligence, vol. 1, § 968. But here we do not have the case of a mere invitee in the ordinary sense. As we understand, it is not disputed that, being by virtue of his employment in privity with the contractor, plaintiff's right to be and to work |