ment of money, will not entitle a party to demand such a return.1

§ 616. The money must actually have been paid through mistake, to authorize a return. In any case, where the Office had no jurisdiction of the subject-matter filed, such return will be made; as, for example, where a non-trading corporation filed an application for the registration of a mark, which was therefore not a trade-mark, in contemplation of law, the money was returned. So, in a case where an applicant transmitted a fee which he desired to be applied for copyrighting a picture, which matter is solely within the cognizance of the Librarian of Congress. But when the Office has undoubted jurisdiction of the class to which the case belongs, the fee will have been earned the moment of the first action by an officer. The Government does not undertake to warrant a valid title, or any title at all. The party is presumed to know the true state of facts, as well as the law, before he applies for registration. If his application is rejected for any cause, the money paid will be retained, by way of costs.

1 No. 111, Rules of Practice of Patent Office.

CHAPTER XIV.

INTERFERENCES IN PATENT OFFICE.

Skill demanded. — Definition. — In what Cases declared. — Preliminary. —Declaration and Dissolution. - Notice. - Grounds for declaring. - Compulsory Testimony. - Access to Testimony filed. — Printed Copies of Testimony. — Postponement. - Information in pending Cases. Sources of Evidence. -Rules for taking and transmitting Testimony. - Case closed. - Hearing. — Appeal. - Practice exemplified. -"Durham" Case. Decision of Examiner. Of Commissioner. Of Court. 66 'Bouquet" Case. Multiplicity of Legal Questions. "Paul Jones" Case.

§ 617. Interferences frequently demand the most skilful management, and bring into requisition all the acumen and learning of the ablest lawyers, so far, at least, as regards the taking of testimony, and the application of the rules of evidence. This presupposes an intimate acquaintance with the law of the case in hand.

§ 618. The matter must be as carefully conducted as though it were pending in a court of equity; indeed, the practice is moulded upon that of such a tribunal. As in controversies in courts, substantial rights may be frittered away by an inartificial mode of procedure; by a failure to evoke evidence of material facts, owing to a slovenly mode of examining witnesses; or by such irregularities in practice as are beyond toleration when the interests of another party are at stake.

§ 619. True it is that the Office earnestly strains after the furtherance of justice; but to this as to all worthy endeavors elsewhere there is practically a limit; and litigants must generally be left to rest as best they may upon the beds made

by themselves. An issue is joined, testimony is taken, objections and points are made, arguments are heard, and the Office decides upon the whole matter as presented. Leading and other improper questions and the answers to them are ruled out, and, may-be, whole depositions are eliminated for want of proper care having been given; for manifest lack of good-faith; or for some other fault, although it may be the result of sheer ignorance or carelessness. In case of surprise, relief will be given to an innocent party. Thus, upon a motion to reopen an interference in order to receive testimony which had been delayed until after the day of hearing by the fault of the officer before whom it had been taken, the decision of the Examiner was suspended, and the case set for immediate hearing upon the testimony and arguments by that time in.1 But after one party had filed his preliminary statement and taken his testimony, the Commissioner refused to open the case and allow the other party to file a preliminary statement and take testimony, where, although not originally a party, it appeared that he had had knowledge of the pendency of the interference, and the proceedings under it.2

§ 620. It may here be remarked, that seeming mere irregu larities are sometimes the manifestations of subtlety and craft of tricky practitioners. Their object is to discover the weakness of the adversary, and then by feigned surprise, or plausible excuse, obtain permission to take additional testimony. Such persons can usually find witnesses to supply all deficiencies in the evidence. When such a motive becomes apparent, the Office is sometimes called upon to exercise some ingenuity to circumvent villany, for rogues like them care little for frowns of indignation.

§ 621. An Interference is defined to be an interlocutory proceeding for the purpose of determining which of two or more persons, each or either of whom claims to be the first adoptor 1 Hayden v. Phillips, Commissioner's Decisions of 1870, p. 171. 2 Aldrich et al. v. Bingham, id. p. 90.

of a trade-mark, really did first adopt it. It may also be resorted to for the purpose of procuring evidence of an alleged abandonment of the mark in controversy.

§ 622. It will be declared in the following cases: First. When the parties have pending applications before the Office at the same time, both or all of the parties claiming priority of title to the same mark,—or one substantially the same, — used to indicate the same class of merchandise. Second. When an applicant having been rejected upon a previously-registered trade-mark claims an older subsisting title.

§ 623. Under the rule as to an older subsisting title, this case may arise, and may as well as not be anticipated in this place. A. may have in good-faith registered his mark, supposing that no one else in the world had appropriated it for the same purpose; and as a fact it may be that no other person had any right to ask for registration, when A. made his application. He then stood alone before the Office, with a primá facie case, at least. If any other person had a better right to the thing, that right was not made manifest. Accordingly, his claim is admitted, and a certificate of registry duly issued. We concede that A. was the only person who had a legal right to registry. By virtue of a treaty subsequently made with some foreign country, B. comes in and demands that his trademark be registered in pursuance of the treaty stipulations. His proof is clear that he had adopted the mark long before A. What is to be done? A. acted in ignorance of B.'s right, and in perfect honesty. To deprive him of the exclusive right to the use of his symbol of trade may do him irreparable injury. He was diligent; he was truthful. At the time of registration, he was the only person in the world who had any standing before the Office.

§ 624. The solution of the question is easy to him who has studied the principles upon which rest the laws of a right to a trade-mark. The question thus far presented is one of registration. We must pass that by, and come to the real ques

tion, Who had the prior right to the use of the mark? If it were a claim to letters-patent for an invention, or to a copyright, the junior applicant might well be refused relief; for patents and copyrights are the creatures of arbitrary law, and, the courts say, have no foundation in nature. But not so in a matter of property in the conventional symbol that is the substitute for a man's name. That is founded upon immutable law, as we have before seen. Such being the case, B.'s priority of right must prevail; and for this reason: It was not his right but his remedy which was in abeyance. The treaty which demolished the partition-walls admitted him to all the privileges of the most-favored persons. But then he ousted another from a vested right? No: it was only an apparent right; for if the Patent Office had had any knowledge that any one else in any country had an older title, the application for registration. would have been refused. B. had all the time a perfect common-law right, and could have sued in our courts as an alien friend, without the slightest regard to the matter of treaty or convention. We could readily imagine other cases just as curious, and yet within the limits of probability. A. might, for instance, set up that, even if B. had once had a title to exclusive use, he had abandoned all right to the same; and that thereupon he, A., was the first to appropriate it to his sole use. B. having established his claim, the next step is to issue to him a letter of registry. That will be to have two outstanding titles to the same property at once. Yes, until a court shall have enjoined one from the use of the symbol, or the wrongdoer shall have voluntarily relinquished all claim to it. The Commissioner has no power to cancel a certificate of registration already issued; for that is a matter for judicial cognizance upon a suit to be brought by the Government, either in its own name or the name of the Attorney-General; or by some form of proceeding which can give official assurance of the sanction of the proper authority. But the Commissioner may, if he find

1 Mowry v. Whitney, Sup. Ct. U. S., April, 1872: Official Gazette of Pafent Office, May, 1872.