In re Warren

194 F.2d 718, 39 C.C.P.A. 865, 93 U.S.P.Q. (BNA) 32, 1952 CCPA LEXIS 284

• Court: Court of Customs and Patent Appeals
• Decided: February 18, 1952
• Docket: No. 5849
• Status: Published

Opinion

O’Connell, Judge,

delivered the opinion of the court:

This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming that of the Primary Examiner who rejected the single claim for a patent on an invention described in appellant’s application as “a new, original and ornamental design for an Elbow Type Fitting.”

The appealed application, serial No. D-136,797, which was included and argued together with Appeal No. 5848 and Appeal No. 5850 and concurrently decided herewith, relates to the rejection of the single claim in one of a group of three copending applications for design patents on various types of multiple pipe fittings.

The respective rejections were based, among other things, on the holding that each of the claimed designs were individually patentable but not patentably distinguishable from one another, in view of the elected and preferred design claimed in appellant’s application, serial No. D-136,800, the allowance of which has been authorized but withheld from issue by the Patent Office pending the disposition of this and the other companion appeals.

The appealed claim in the present case reads: “The ornamental design for an elbow type fitting as shown.” The following excerpt from the decision of the board describes the basis for the final rejection of the claim as unpatentable over appellant’s elected design:

The instant design is composed of two cylindrically shaped collar-like ends disposed at right angles to one another and' connected by a box-like, L-shaped corner member. The corner member has a fist top and sides, with a curved portion connecting the top with the outer side. One of the end collars is relatively large and is provided with a round, tapered, webbed boss on its outer surface.

The Examiner points out that the instant design differs from the elected design by disclosing a relatively larger cylindrical collar with a round, tapered, webbed boss on its outer surface, whereas the elected design discloses the form of the corresponding end in broken lines and hence is unessential. * * * It is his opinion that to add such a collar for the one illustrated in dotted lines would not produce any unexpected or unobvious appearance and would not require invention. He also contends that the difference due to the merging of the edges of the corner member wi.th one end collar is a minor detail, and does not create any unexpected distinctive appearance in the design.

The board sustained the action of the examiner on the ground of rejection hereinbefore explained. The comparable general view between appellant’s elected design and his claimed design which we have considered in the instant appeal compels us to conclude that no error was made in the decision of the board from which the instant appeal was taken.

It is noted that the appealed claim was further rejected as not patentable over appellant’s elected application in view of certain prior art references. We consider that no useful purpose would be served here by a discussion of that rejection;

For the reasons stated, the decision of the Board of Appeals is affirmed.