Application of Melvin H. Boldt

344 F.2d 990, 52 C.C.P.A. 1283

• Court: Court of Customs and Patent Appeals
• Decided: May 13, 1965
• Docket: Patent Appeal 7292
• Status: Published

Opinions

WORLEY, Chief Judge.

The question here is whether the Board of Appeals committed reversible error in affirming the rejection on prior art of the sole claim¹ in Boldt application serial No. 62,232, filed September 21, 1960, for a design patent for a “Radio Cabinet.”

The application discloses a cabinet with a rectangular front divided along a vertical line into two rectangular portions, one relatively narrow, the other relatively wide. The narrow portion is provided with a circular tuning dial centrally located thereon, and a circular control knob of smaller diameter disposed directly thereunder.

The larger rectangular portion constitutes the grille behind which the speaker is normally disposed. It is provided throughout with evenly, closely spaced apertures and has a circularly brushed appearance. Appellant states:

“The novel features of my design reside in the provision of a multi-apertured semi-bright or satin finish panel having a circularly brushed surface effect to present multitudinous varying reflection and moire² effects dependent upon ambient lighting and the viewing aspect of the observer * *

The references relied on by the examiner and board are:

Mart Magazine, February 1959, page 49, Admiral Pocket Radio, left-hand column.

Mart Magazine, May 1958, page 48, Regency Transistor Radio, left-hand column.

Everybody’s Home Workshop Encyclopedia (c) 1948, page 163, metal discs, top of page.

Club Aluminum, catalog slip sheet, form DSA-270, (c) 1952 by Club Aluminum Products Co. griddle, bottom of page.

The 1959 Mart Magazine shows a radio cabinet whose front has a speaker grille, tuning dial and control knob located and proportioned much like appellant’s cabinet. A similar cabinet is shown in the 1958 Mart publication, the grille there clearly appearing as a flat panel provided throughout with evenly and closely spaced circular apertures.

Everybody’s Home Workshop Encyclopedia discloses a metal panel decorated with overlapping brushed areas, each of which shows radial highlights.

The Club Aluminum reference shows an aluminum griddle with a circularly brushed surface exhibiting radial highlights.

The examiner and board thought that, in view of the Home Workshop Encyclopedia and Club Aluminum reference, it would be obvious to a person of ordinary skill in the art to apply a circular brushed pattern to the perforated grille shown in Mart. In reaching that conclusion, the board took judicial notice that “the visual effect produced by a circularly brushed surface with changed relative positions of a light source and an observer” was common knowledge long prior to appellant’s filing date.

To support his allegations that the board erred, appellant advances two principal contentions: That the secondary references are from non-analogous arts; and that his design creates a visual effect distinctly different from any of the references, “particularly in the development of varying moire patterns with variations in viewing angle and ambient lighting.”

As to the first contention, the question in design cases is not whether the references sought to be combined are in analogous arts in the mechanical sense, but whether they are so related that the appearance of certain ornamental features in the one would suggest application of those features in the other. In re Glavas, 230 F.2d 447, 43 CCPA 797. Thus, we do not think the mere fact that the Home Workshop Encyclopedia and Club Aluminum references are not directed to radio cabinets necessarily proves the board to be in error.

However, we do question whether the prior art of record would make appellant’s claimed design obvious to one of ordinary skill in the art. Both secondary references show a circularly brushed effect on a solid metal surface. One skilled in the art might expect that such treatment of a perforated grille surface would result in an effect resembling the similarly treated solid surface so far as radial highlights are concerned. We doubt, however, that he would find anything in the references to suggest that a varying moiré effect be provided on a radio cabinet grille or that moiré patterns could be obtained by applying the circular brushed effect to the perforated panel of the prior art radio cabinet. The contribution which the moiré effect makes to the ornamental appearance of appellant’s design for a radio cabinet supports our conclusion that what appellant has done would not be obvious within the meaning of 35 U.S.C. § 103.

The decision is reversed.

Reversed.

1 . The claim is in formal design form reading:

“The ornamental design for a radio cabinet substantially as shown and described.”

2 . Appellant describes the moiré effect as “curlicue light interference patterns.”