In re Glaberson

Customs and Patent Appeals

In re Glaberson

253 F.2d 430, 45 C.C.P.A. 854, 117 U.S.P.Q. (BNA) 217, 1958 CCPA LEXIS 205

CourtCourt of Customs and Patent Appeals

DecidedMarch 21, 1958

DocketNo. 6362

StatusPublished

Cited by1 cases

This text of 253 F.2d 430 (In re Glaberson) is published on Counsel Stack Legal Research, covering Court of Customs and Patent Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re Glaberson, 253 F.2d 430, 45 C.C.P.A. 854, 117 U.S.P.Q. (BNA) 217, 1958 CCPA LEXIS 205 (ccpa 1958).

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Opinion

Rich, Judge,

delivered the opinion of the court:

This appeal is from the decision of the- Board of Appeals affirming the examiner’s rejection of appellant’s claim iii application serial No. D-26,605, filed August 27, 1958, for a design for a safety razor Case. •

The references relied upon are:

Sehladermundt et al., D-165,346, Dec. 4,1951.

Wark et al., D-172,912, Aug. 24, 1954.

Beeken Book, 1942, page 301, Item 301 H 4.

National Carbon Co., May 1, 1926, pages 1 and 2.

It became belatedly apparent at the oral argument in this court that the Wark et al. reference may not legally be used as a reference to show prior art since the application for that patent was not filed until November 20, 1953, nearly three months after the filing of appellant’s application. 35 U. S. C. 102. The Patent Office solicitor conceded at the argument that this legal error had been made.

Since it is evident that both the examiner and the Board of Appeals proceeded under a misunderstanding, the éxaminer definitely relying on Wark et al. and the board finding that “the examiner’s action is without reversible error,” and the parties having briefed the case on the same misunderstanding, we are reversing the decision of the board and remanding the case to the Patent Office with instructions to reexamine the. application without regard to the Wark et al. patent. We express no opinion on the merits at this time.

Jackson, J., retired, recalled to participate.

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Rich, Judge,

delivered the opinion of the court:

This appeal is from the decision of the- Board of Appeals affirming the examiner’s rejection of appellant’s claim iii application serial No. D-26,605, filed August 27, 1958, for a design for a safety razor Case. •

The references relied upon are:

Sehladermundt et al., D-165,346, Dec. 4,1951.

Wark et al., D-172,912, Aug. 24, 1954.

Beeken Book, 1942, page 301, Item 301 H 4.

National Carbon Co., May 1, 1926, pages 1 and 2.

It became belatedly apparent at the oral argument in this court that the Wark et al. reference may not legally be used as a reference to show prior art since the application for that patent was not filed until November 20, 1953, nearly three months after the filing of appellant’s application. 35 U. S. C. 102. The Patent Office solicitor conceded at the argument that this legal error had been made.

Since it is evident that both the examiner and the Board of Appeals proceeded under a misunderstanding, the éxaminer definitely relying on Wark et al. and the board finding that “the examiner’s action is without reversible error,” and the parties having briefed the case on the same misunderstanding, we are reversing the decision of the board and remanding the case to the Patent Office with instructions to reexamine the. application without regard to the Wark et al. patent. We express no opinion on the merits at this time.

Jackson, J., retired, recalled to participate.

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253 F.2d 430, 45 C.C.P.A. 854, 117 U.S.P.Q. (BNA) 217, 1958 CCPA LEXIS 205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-glaberson-ccpa-1958.

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