ALMOND, Judge.
This is an appeal from the decision of the Board of Appeals affirming the examiner’s rejection on prior art of appellant’s claims 13, 14 and 15, the only claims remaining in the case.
The application1 is for “Handles or Holders for Writing Instruments.’’
Claim 15 is typical and, stated with reference to the drawing immediately following, adequately describes the claimed invention:
“15. A handle for a writing instrument comprising an elongated body [1] having an end portion [4] which tapers inwardly toward the axis of the body at the writing end £3] thereof, and having three symmetrical angularly disposed gripping surfaces [5, 6 and 7] adapted to be engaged by the thumb, forefinger and middle finger of the hand, said gripping surfaces terminating at and merging into the surfaces of said end portion at a common cross sectional plane [Fig. 5] perpendicular to the axis of the body and extending away from said end portion longitudinally of the body and heli-cally around the axis of the body so that in successive cross-sections [Figs. 6-12] taken through the body and through said gripping surfaces the angle between each of said gripping surfaces and a given longitudinal axial plane of reference increases continuously throughout the length of said gripping surfaces, and in which, as said gripping surfaces extend away from said end portion longitudinally of the body, they first curve downwardly toward the axis, then upwardly away from said axis.”
The specification recites the objects of the invention as follows:
“It is an object of the invention to provide a handle or holder for such writing instruments having gripping surfaces which are so formed as to fit naturally, easily and comfortably the surfaces of the thumb, forefinger and middle finger of the hand when said fingers and thumb are held in proper position for writing. Being so formed, they aid children whose writing habits are unformed, to quickly and easily form correct writing habits. Moreover, said gripping surfaces are so formed as to cause the thumb and fingers to assume proper writing [681]*681position, and thereby aid older children and adults who have formed incorrect writing habits, to quickly and easily correct such habits and to improve their penmanship. Because the contours of said gripping surfaces tend to cause the writer to hold the writing instrument correctly, and permit the writer to hold the writing instrument securely with less finger pressure, hand and finger tension is reduced and the writer may write for long periods without experiencing writing fatigue.”
The references relied on are:
Gordon
Foss
Pleasants
Lehmann (Swiss)
Karpoff (French)
904,059
1,953,706
D-136,595
11,546
1,191,434
Nov. 17, 1908
Apr. 3, 1934
Nov. 2, 1943
Jan. 23, 1896
Apr. 13, 1959
Pleasants shows a handle or holder comprising a tapered bar of triangular cross-section rounded at the ends and twisted near the middle into a helix. Fig. 1 of the Pleasants design patent is as follows:
Gordon shows a tapered penholder of triangular cross-section with grooves or channels of concave cross-section at the larger end for resting the index finger and thumb respectively while the forefinger rests on a flat area.
Lehmann shows a tapered holder with raised portions adjacent frontally, said portions with three recesses especially shaped to accommodate when in use the index finger, middle finger and thumb.
Karpoff shows a tapered penholder having a raised portion with three recesses especially shaped to accommodate the thumb, index finger, and middle finger.
Foss shows a penholder of rectangular cross-section with a recess in a longitudinal corner shaped for resting the thumb therein while the forefinger and middle finger rest against fiat sections.
The examiner rejected claim 15 as un-patentable over Pleasants with resort to support from Foss or Karpoff if deemed necessary. The examiner pointed out that Pleasants shows three symmetrica] angularly disposed gripping surfaces which meet the recitation of helical extension “around the axis of the body” and that the angle of any helically extending gripping surface between each of the surfaces and a given longitudinal axial plane would increase “continuously throughout the length of the gripping surfaces” and hence the recitation would not patent-ably define over Pleasants. He further noted that the recitation that the gripping surface “first curves downwardly toward said axis then upwardly away [682]*682from the axis” is not only structurally defined by Pleasants but is an obvious expedient common to the art as shown by Foss or Karpoff.
The examiner rejected claim 14 as un-patentable over Pleasants for reasons applied to claim 15, with attention directed to Gordon, holding that the recitation of the “gripping surfaces being slightly convex in transverse cross section” was not deemed patentably significant; that Gordon discloses flat and concave gripping surfaces; that it is common to the art to have various shapes when viewed in cross-section, reflecting only a matter of choice relating to personal inclination and comfort and varying from person to person without aiding the writing process.
The examiner rejected claim 13 as un-patentable over Pleasants with attention directed to Lehmann and Karpoff, holding that the precise configuration of the helix was simply another variation to the various curvatures shown by Pleasants, Kar-poff and Lehmann. The examiner concluded that such variation in increase of angle was not an unobvious expedient but involved only “design and/or mechanical skill.” The examiner further noted that Karpoff appeared to show a helical formation within the claimed range and hence such modification was not deemed inventive.
The board found no error in the examiner’s holding, adding, however, with reference to claims 13 and 14 relating to “slightly convex” gripping surfaces, that:
“ * * * a common penholder, which is not provided with finger-gripping grooves therein, has an external convex surface for finger-gripping purposes. Accordingly, it is not unobvious to make the gripping surfaces of the Pleasants pen-holder slightly convex in cross section.”
Appellant relies on three aspects of the gripping surfaces to distinguish the invention from the prior art. First is the helical conformation of the gripping surfaces. Second is the curvature of each surface first downwardly toward the axis of the holder and then upwardly away from the axis. In other words, each surface curves inwardly to a maximum depth approximately where the Fig. 9 cross-section is taken. Third is the slightly convex curvature of the cross-section of the gripping surfaces.
We have carefully compared appellant’s drawings with those of Pleasants. The striking similarity of these drawings is inescapable. As pointed out by the examiner in sufficient detail, it seems clear to us that the description of appellant’s claimed invention reads on and is met in large measure by the Pleasants’ disclosure. The helical conformation is clearly shown.
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ALMOND, Judge.
This is an appeal from the decision of the Board of Appeals affirming the examiner’s rejection on prior art of appellant’s claims 13, 14 and 15, the only claims remaining in the case.
The application1 is for “Handles or Holders for Writing Instruments.’’
Claim 15 is typical and, stated with reference to the drawing immediately following, adequately describes the claimed invention:
“15. A handle for a writing instrument comprising an elongated body [1] having an end portion [4] which tapers inwardly toward the axis of the body at the writing end £3] thereof, and having three symmetrical angularly disposed gripping surfaces [5, 6 and 7] adapted to be engaged by the thumb, forefinger and middle finger of the hand, said gripping surfaces terminating at and merging into the surfaces of said end portion at a common cross sectional plane [Fig. 5] perpendicular to the axis of the body and extending away from said end portion longitudinally of the body and heli-cally around the axis of the body so that in successive cross-sections [Figs. 6-12] taken through the body and through said gripping surfaces the angle between each of said gripping surfaces and a given longitudinal axial plane of reference increases continuously throughout the length of said gripping surfaces, and in which, as said gripping surfaces extend away from said end portion longitudinally of the body, they first curve downwardly toward the axis, then upwardly away from said axis.”
The specification recites the objects of the invention as follows:
“It is an object of the invention to provide a handle or holder for such writing instruments having gripping surfaces which are so formed as to fit naturally, easily and comfortably the surfaces of the thumb, forefinger and middle finger of the hand when said fingers and thumb are held in proper position for writing. Being so formed, they aid children whose writing habits are unformed, to quickly and easily form correct writing habits. Moreover, said gripping surfaces are so formed as to cause the thumb and fingers to assume proper writing [681]*681position, and thereby aid older children and adults who have formed incorrect writing habits, to quickly and easily correct such habits and to improve their penmanship. Because the contours of said gripping surfaces tend to cause the writer to hold the writing instrument correctly, and permit the writer to hold the writing instrument securely with less finger pressure, hand and finger tension is reduced and the writer may write for long periods without experiencing writing fatigue.”
The references relied on are:
Gordon
Foss
Pleasants
Lehmann (Swiss)
Karpoff (French)
904,059
1,953,706
D-136,595
11,546
1,191,434
Nov. 17, 1908
Apr. 3, 1934
Nov. 2, 1943
Jan. 23, 1896
Apr. 13, 1959
Pleasants shows a handle or holder comprising a tapered bar of triangular cross-section rounded at the ends and twisted near the middle into a helix. Fig. 1 of the Pleasants design patent is as follows:
Gordon shows a tapered penholder of triangular cross-section with grooves or channels of concave cross-section at the larger end for resting the index finger and thumb respectively while the forefinger rests on a flat area.
Lehmann shows a tapered holder with raised portions adjacent frontally, said portions with three recesses especially shaped to accommodate when in use the index finger, middle finger and thumb.
Karpoff shows a tapered penholder having a raised portion with three recesses especially shaped to accommodate the thumb, index finger, and middle finger.
Foss shows a penholder of rectangular cross-section with a recess in a longitudinal corner shaped for resting the thumb therein while the forefinger and middle finger rest against fiat sections.
The examiner rejected claim 15 as un-patentable over Pleasants with resort to support from Foss or Karpoff if deemed necessary. The examiner pointed out that Pleasants shows three symmetrica] angularly disposed gripping surfaces which meet the recitation of helical extension “around the axis of the body” and that the angle of any helically extending gripping surface between each of the surfaces and a given longitudinal axial plane would increase “continuously throughout the length of the gripping surfaces” and hence the recitation would not patent-ably define over Pleasants. He further noted that the recitation that the gripping surface “first curves downwardly toward said axis then upwardly away [682]*682from the axis” is not only structurally defined by Pleasants but is an obvious expedient common to the art as shown by Foss or Karpoff.
The examiner rejected claim 14 as un-patentable over Pleasants for reasons applied to claim 15, with attention directed to Gordon, holding that the recitation of the “gripping surfaces being slightly convex in transverse cross section” was not deemed patentably significant; that Gordon discloses flat and concave gripping surfaces; that it is common to the art to have various shapes when viewed in cross-section, reflecting only a matter of choice relating to personal inclination and comfort and varying from person to person without aiding the writing process.
The examiner rejected claim 13 as un-patentable over Pleasants with attention directed to Lehmann and Karpoff, holding that the precise configuration of the helix was simply another variation to the various curvatures shown by Pleasants, Kar-poff and Lehmann. The examiner concluded that such variation in increase of angle was not an unobvious expedient but involved only “design and/or mechanical skill.” The examiner further noted that Karpoff appeared to show a helical formation within the claimed range and hence such modification was not deemed inventive.
The board found no error in the examiner’s holding, adding, however, with reference to claims 13 and 14 relating to “slightly convex” gripping surfaces, that:
“ * * * a common penholder, which is not provided with finger-gripping grooves therein, has an external convex surface for finger-gripping purposes. Accordingly, it is not unobvious to make the gripping surfaces of the Pleasants pen-holder slightly convex in cross section.”
Appellant relies on three aspects of the gripping surfaces to distinguish the invention from the prior art. First is the helical conformation of the gripping surfaces. Second is the curvature of each surface first downwardly toward the axis of the holder and then upwardly away from the axis. In other words, each surface curves inwardly to a maximum depth approximately where the Fig. 9 cross-section is taken. Third is the slightly convex curvature of the cross-section of the gripping surfaces.
We have carefully compared appellant’s drawings with those of Pleasants. The striking similarity of these drawings is inescapable. As pointed out by the examiner in sufficient detail, it seems clear to us that the description of appellant’s claimed invention reads on and is met in large measure by the Pleasants’ disclosure. The helical conformation is clearly shown. One need only examine the surfaces to which the gripping surfaces conform, to wit: the fingers, to find a suggestion to curve the gripping surfaces first inwardly then outwardly. As to the minor variations, it would be obvious to make slight modifications of Pleasants as suggested by the teachings of the secondary references. To recite> them in more detail would not, in material substance, amount to more than the analysis and comparison made by the examiner and expressly affirmed by the board.
The board took note of appellant’s contention that because the Pleasants’ patent is for a design, “the helices shown therein are for ornamental purposes only and have no mechanical utility whatsoever.” The board stated further:
“ * * * The design shown therein is for a penholder or similar article and it is inescapable that the three helices disclosed have functional aspects, namely to provide finger-gripping surfaces for the thumb, forefinger and middle finger of the hand. The propriety of the use of a design patent as anticipatory for a mechanical claim is well established. In re Hargraves, 19 CCPA 784; 11 USPQ 240; 53 F.(2d) 900; 416 OG 285; 1932 CD 113 and the authorities cited therein.”
Appellant states that he does not make the contention attributed by the board but does contend that Pleasants’ helix has [683]*683no mechanical utility. We agree with the board relative to the functional aspects of the helices disclosed by Pleasants irrespective of the nature of the patent grant.
Appellant argues that the Pleasants’ patent may be assigned to the category of “worse than useless,” attributing this depreciation to the fact that Pleasants was concerned with ornamental design rather than functional utility. Except by way of argumentative assertion, there is no indication of record that appellant’s article is more useful than the pen of the Pleasants’ disclosure.
Finding no reversible error in the decision of the board, that decision, for the reasons stated, is accordingly affirmed.
Affirmed.