In re Andrews

39 F.2d 284, 17 C.C.P.A. 929, 1930 CCPA LEXIS 226

• Court: Court of Customs and Patent Appeals
• Decided: April 10, 1930
• Docket: No. 2271
• Status: Published

Opinion

Hatpield, Judge,

delivered the opinion of the court:

This is an appeal from the decision of the Board of Appeals affirming the decision of the examiner denying appellant’s application for a patent for an alleged new, original, and ornamental design for gloves.

The application discloses a glove with an adjustable fastener at the wrist, consisting of a band or strap and two rings. In other respects, so far as we can ,see, the glove is of conventional design.

The references are: Lemercier (French), 567345, December 5,1923; Gaisman (design), 29037, July 12, 1898; Bice (design), 61380, September 12,1922; item 18-H-6955, page 147, Sears Boebuck & Co., 1917; item 35-B-3100, page 321, Montgomery Ward & Co., 1915; item 35-E-7289, page 321, Montgomery Ward & Co., 1919.

It clearly appears from the references, and it is not denied by counsel for appellant, that an adjustable fastener around the wrist of a glove is old in the art.

It is contended by appellant, however, that the particular adjustable fastener disclosed in the application together with the other features of appellant’s glove, produce a novel and distinctive design not suggested in the prior art. It is contended that “ even though the applicant had substituted a different form of strap in gloves otherwise tantamount, the patent should issue inasmuch as the -finished design is attractive mid has the approval of commercial acceptance.” (Italics ours.)

In its decision, the Board of Appeals, among other things, said:

Gloves having bands or straps surrounding the wrist or body portion thereof are not new. The Rice design patent shows such a glove, also item E-7289, page 321 of Montgomery Ward & Co. Catalogue for 1919. The claimed design generally being old as disclosed by the cited references, the examiner has taken the position that it is a mere matter of selection not involving invention to apply to or substitute for the strap or band of the reference gloves a band or strap like that shown by the French patent to Lemercier, No. 567345, December 5. 1923.

We agree with the examiner that it would not involve invention to substitute for the strap or band of the glove in the basic references a strap or band of such as is disclosed in the French patent.

The French patent to Lemercier discloses an adjustable fastener consisting of a band or strap and two metal rings, for use on articles of clothing.

It would seem to be obvious that appellant has added the adjustable fastener disclosed by Lemercier to a glove of conventional design.

It is argued that the design thus produced is patentable. Although it is true that a patentable design may be created by a combination of old elements, it does not necessarily follow that every such combination involves invention.

Obviously, if adding the adjustable fastener of Lemercier to a glove of conventional design, in view of the prior art, produces a patentable design, then any change or alteration in a glove design by a skilled workman would involve invention.

We are of opinion that the tribunals of the Patent Office were right in denying appellant’s application.

The decision of the Board of Appeals is affirmed.