Lebold v. Marzall

D.C. Circuit

Lebold v. Marzall

197 F.2d 209, 91 U.S. App. D.C. 53, 93 U.S.P.Q. (BNA) 357, 1952 U.S. App. LEXIS 4313

CourtCourt of Appeals for the D.C. Circuit

DecidedMay 29, 1952

Docket11302

StatusPublished

This text of 197 F.2d 209 (Lebold v. Marzall) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lebold v. Marzall, 197 F.2d 209, 91 U.S. App. D.C. 53, 93 U.S.P.Q. (BNA) 357, 1952 U.S. App. LEXIS 4313 (D.C. Cir. 1952).

Pincite

Opinion

PER CURIAM.

This appeal is from a judgment of the District Court dismissing, after trial, a complaint filed under Rev.Stat. § 4916 (1875), as amended 45 Stat. 732 (1928), 35 U.S.C.A. § 64, for reissue of a patent on a beverage bottle carrier, the handle of which fits below the tops of the bottles in the carrier. In view of a new reference 1 overlooked when appellant’s patent was granted, the court held that the device lacked invention over the prior art. D.C.1951, 100 F.Supp. 867. This ruling accorded with decisions of the Examiner and the Board of Appeals of the Patent Office. The foregoing determinations must stand unless they are not reasonable on the evidence or are clearly erroneous. Standard Oil Development Co. v. Marzall, 1950, 86 U.S.App.D.C. 210, 181 F.2d 280; Radtke Patents Corporation v. Coe, 1941, 74 App.D.C. 251, 122 F.2d 937; Abbott v. Coe, 1940, 71 App.D.C. 195, 109 F.2d 449.

Appellant relies upon the utility and the commercial success of the article. But these factors alone are not controlling. There must be the added elements of novelty and creative genius. Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 1950, 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162; Atlantic Works v. Brady, 1883, 107 U.S. 192, 2 S.Ct. 225, 27 L.Ed. 438; Gilbert v. Marzall, 1950, 87 U.S.App.D.C. 1, 182 F.2d 389.

The judgment is

Affirmed.

1

. The Lyons Patent No. 2,296,937, September 29, 1942. See also Himes Patent No. 2,273,266, February 17, 1942.

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PER CURIAM.

This appeal is from a judgment of the District Court dismissing, after trial, a complaint filed under Rev.Stat. § 4916 (1875), as amended 45 Stat. 732 (1928), 35 U.S.C.A. § 64, for reissue of a patent on a beverage bottle carrier, the handle of which fits below the tops of the bottles in the carrier. In view of a new reference 1 overlooked when appellant’s patent was granted, the court held that the device lacked invention over the prior art. D.C.1951, 100 F.Supp. 867. This ruling accorded with decisions of the Examiner and the Board of Appeals of the Patent Office. The foregoing determinations must stand unless they are not reasonable on the evidence or are clearly erroneous. Standard Oil Development Co. v. Marzall, 1950, 86 U.S.App.D.C. 210, 181 F.2d 280; Radtke Patents Corporation v. Coe, 1941, 74 App.D.C. 251, 122 F.2d 937; Abbott v. Coe, 1940, 71 App.D.C. 195, 109 F.2d 449.

Appellant relies upon the utility and the commercial success of the article. But these factors alone are not controlling. There must be the added elements of novelty and creative genius. Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 1950, 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162; Atlantic Works v. Brady, 1883, 107 U.S. 192, 2 S.Ct. 225, 27 L.Ed. 438; Gilbert v. Marzall, 1950, 87 U.S.App.D.C. 1, 182 F.2d 389.

The judgment is

Affirmed.

1

. The Lyons Patent No. 2,296,937, September 29, 1942. See also Himes Patent No. 2,273,266, February 17, 1942.

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197 F.2d 209, 91 U.S. App. D.C. 53, 93 U.S.P.Q. (BNA) 357, 1952 U.S. App. LEXIS 4313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lebold-v-marzall-cadc-1952.

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