*1 Except quotation Private While the a the words “Your use has marks by slight ‘Sky-Room’,” tendency private “Your salon toward the establishment night” day, claim, emphasis the words double bedroom this fea- sufficient a the advertisement describe to turn into itself flight specific mark which service which otherwise tures lacks this passengers characteristics, travel either available to all the who inher- ently Parisian,” or or of manner whether virtue “Golden use. “Sky-Room.” The a have reserved accompanying pictures portray which “Sky-Rooms” man, woman show a surroundings day child time child two the room and adults and presume, appears as, in the room we night. when converted into bedroom 46 CCPA Nothing pertaining in the advertisement Application of Francis Lockwood “Sky-Room” air to transportation identifies O’BRIEN. service of Appeal Patent 6425. No. reveals no evidence
there other United States Court of Customs “Sky-Room” as public considers Appeals. and Patent identifying this airline. an mark of April advertisement, as taken opinion, “Sky-Room” is whole, indicates type ac- particular used to connote regardless provides who commodation, distinguish any it, service rather than serv- provided by appellant similar from provided others.
ices de- affirm reasons we the above
For the Assistant Commissioner.
cision of
Affirmed. Judge
RICH, (concurring). should decision below I no I believe because affirmed phrase hav- (to coin use servicemark ing meaning “trademark as same “Sky- of the words made use”) been has private aptly They describe Room.” sky airplane room in room —a ato convertible
—whether They been compartment. have sleeping descriptive running text in a used evidence absence In the manner. distinctive “has become term that the (sec- goods in commerce” applicant’s 1052(f)), 2(f), § 15 U.S.C.A. tion specimen in- us fails before we have public me, dicate, at least “Sky- likely take the words originat- indicating a service Room” Air Compagnie Nationale ing distinguished any other France type using of aircraft. same airline *2 Washington, Moore, D. Clarence W. C. C., (George Washington, Rooming, D. C. Patents, counsel), for the Comr. of Judge, WORLEY, Acting Before Chief RICH, MARTIN, and JOHNSON (retired), Judges. Judge.
WORLEY, Acting Chief This from the decision Appeals the Board of of the United affirming Patent States Office Pri- mary certain Examiner’s appellant’s application claims of for a instrument, on a musical ground of lack of invention over prior art.
Appealed claims and 6 read: “4. A com- musical instrument keyboard prising having key for scale, each note of the series three string strings, containing each scale, for each note strings having said series tuned its according at standard intervals string repre- the notes which each pitch, sents at standard another having strings series said its identical intervals first string being series but each defi- nite fraction aof semitone lower string corresponding than its series, first mentioned and the third having series its tuned at identical intervals of first se- ries, string but each a definite higher fraction semitone than corresponding string its of the first series, and mechanism operated striking key for string the related of each series simultaneously. according
A“6. device to Claim in which the fractional differenc- pitch es in are both Rice, City (Rob- Willis New York B. of a semitone.” % Dennison, Washington, C., ert I. D.
counsel), appellant. The references relied on are: 512,048 January 2,1 Muller Hammond 2,159,505 894. May 23, 1939. Kannenberg 2,287,105 23, June 1942.
Hanert 2,509,923 May 30, pi- No mention of the Appellant’s application discloses a which the actuated ano in hammer made simul- and in view of strikes *3 string group taneously. Office, of each One fact the Solicitor of the Patent relying scale, Wesselman, In the another on 127 F.2d a note re tuned to of 311, 988; semitone, prefera- Boyce, 144 CCPA In re of a a fraction tuned note, 896, 718; bly one-third, that F.2d and re about below CCPA In Glocker, 789, string the same is tuned F.2d 33 CCPA third and the arrange- degree above note. This that the should the contends decision board’s of be richness its affirmed without consideration ment is said to of awith merits. tone obtained which cannot be conventionally piano. The Wesselman decision does not pear merely pertinent to it be here since patent piano hav- Muller The shows containing appeal holds nothing of that reason ing key, strings for the assignment general but a of by simultaneously strings. being struck satisfy statutory re- error does not quirement the hammer, of each the but the appellant specifi- that must pitch. group the same are tuned to cally appeal. forth his set reasons of Hammond, patents Kannen- to Boyce the In the based case examiner berg, electric all and Hanert relate rejection references, only his six on arrange- organs, discloses an and each by of in which was the board key produces not in which each ment general entering Appel- affirmance. scale, only also vibra- note the lant, appeal, in his reasons of referred higher frequency slightly and of a tion only by to the reference mentioned the Only slightly frequency. one of lower was ac- board. It held that the board’s patent exact the discloses was, effect, in tion all an affirmance of frequencies, there values for such and grounds rejection by employed the though approximately, the note basic examiner, appellant and, that since had higher exactly, midway the not between alleged rejection in not on error the spaced frequencies, is not and lower by those references the not mentioned by one-third them as much as board, affirmed, must the be decision and appellant’s preferred in- in semitone as it not was to consider the strument. noted, It merits of the case. however, rejection first The examiner’s one of that the not references patent That the alone. by was Muller on mentioned by the was board relied on The second the board. reversed
was principal the examiner as the ref- in rejection, and affirmed the board erence, the and did state that board not appeal, was based in instant any volved merely that the references were Hammond, Kannen Muller in view of on Apparently cumulative. the board mere- ground berg, that Hanert on ly independent affirmed one of several invention, require in view grounds would rejection specifically without patents, to tune last three of the considering others. piano in the manner Muller’s In the Glocker case the examiner re- appealed in set claims. forth jected patent the claims on “either the its board made decision patent or the to Brelle Keefer in view following statement: board, Glocker.” The affirming, subsidiary only, relied on Glocker stat- have “We studied unnecessary ing was discuss and find and art patents the other “as are cumula- rela- are cumulative only.” will, It held if tive Hammond. We there- this court
tive to disagree should the board fore, confine further attention as to patent, on Muller.” Glocker fairly be reversed Since the decision could board’s question proposition considering re- essential examiner’s without rejections patents in jection on both the other two based based, feel and the examiner were we Glocker, those other since view of deprived were record and were not should day purely his technical court on the the reasons not referred to in ground with- he failed to mention was affirmed the board’s decision No doubt it the references name. merits. out consideration on the been better he had done have if Boyce both the to be noted *4 so, but we do the omission not consider rejec- ground of cases the and Glocker necessarily fatal. distinct by the was tion discussed board original appeal Since the reasons of discuss, those which it did unnecessary held to it be sufficient is used reference a different basic since appellant’s to consider by motion to amend therefore, Clearly, re- in each case. adding further reasons. ground neces- one would not versal of holding other the sarily that involve a uncertainty is There some as to grounds reversed. also should be exactly what claims the court are before hand, case, appeal. on the other on this The In the instant board considered only rejection ref- patent basic and affirmed of is the the examiner’s Muller the secondary 9, inclusive, 1 ref- claims to involved were the erence and the which only Hammond, Hanert, application. Kannen- claims in and the There erences berg, after, by approved in the of which are included amendment all the appellant board, 2, 7, record, 5, to same were show the cancelled claims cited 8, in namely, producing, appellant’s ap- feature, and 9. the organ, up peal court, specifi- of note made of to this electric no claims are cally assignment frequencies in plurality simul- mentioned the er- of sounded of only taneously. Accordingly, rors, but at the of such as- conclusion signment secondary “Applicant presented, it is is whichever stated that issue considered; and, proposes if it should herewith that is the record reference on rejection Appeal specification reverse shall be to contain filed, August Hammond, 10, which as to the final of Muller view of in assigns 1955, expressly his appellant Ap- error in the decision of the Board of appeal, peals, copy 4, 5, 6, follow that it would and a of and of Claims 7 reasons ” rejections appearing of view on Muller in For some in reason not Kannenberg record, in were also 1 claims and 3 have been in- Hanert and cluded therein in error. addition to claims 4 5, although 7, 9, and 6. Claims and re- opinion appellant’s that areWe appeal, into the notice ferred are not appeal Those are sufficient. reasons reasons, here, presumably included in the record they expressly mention while appellant because had directed patents, only Muller and Hammond cancelled. be Claims and are not definitely the contention that it advance appellant’s in brief and were proper to combine disclosures is not specifically hearing. discussed organ as a basis piano electric and an Under such circumstances arewe of the rejecting claims. Ob- for viously opinion this is limited to applicable contention only claims and those claims Kannenberg patents as be considered. will patent. Ac- the Hammond as to well successfully with the cordingly, We if can validity contentions and Hanert add establish nothing material in a re- what his reasons disclosed advanced patent, far decision would so the board’s be this versal concerned, and, peal accordingly, like order. in opinion board, taste, matter we shall confine consid- and musical pat- suppose it is not unreasonable to eration to the Muller and might preferred many ents. listeners. pertinent Muller The patent, In the Hammond other piano hav- shows to the that it extent hand, signed pitch the differences are not de- key, ing three for each tones, distinct possible manner to tune give a so-called “chorus effect” such as by appellant. contend- claimed playing results from the simultaneous suggests ed Muller discloses or sup- a number of instruments which are tuning strings corresponding one posedly pitch. to the same pitches. It was different tuning differences in the Hammond board, opinion and the examiner instrument are therefore however, Hammond discloses that since appellant’s. smaller than in pitches providing three the idea of It was held the Patent Office tri- slight- key, standard, one tuning bunals that the difference be- lower, ly slightly *5 higher, and the other tween instrument and that tuning invention there would be no nothing Hammond than involved more strings produce piano to Muller’s degree. however, appears, a matter of frequencies three called appellant’s frequencies that whereas are appealed claims. so selected as to differences in position so perceptible tone We with which are the ear of ordinary appealed 4 is listener, as claim concerned. far seek- Hammond is merely ing result, the difference That claim defines to avoid that since he states strings of tuning three that “the produced between the chorus effect fidelity fraction “a definite such can each note that the listener ordi- narily distinguish single semitone,” true of the which is even a a tone pat tuning though, fact, described in as a matter of the tone is 4, therefore, composite for noth a ent. Claim calls tone sound waves applying ing frequency.” Hammond’s of more than the same type teaching shown piano to a opinion In our fails tuning fre by Muller, suggest pitches use of of the order by Ham quencies as are such disclosed appealed claim difference recited in nothing to indicate There mond. clearly differ- indicates that procedure a would lead to that such kept substantially ences should below unexpected and we result or new range such values and within such opinion that would obvious given by impression key each will be Appealed art. person skilled Appellant, by tone. one- a difference 6 is limited to claim very simple expedient, produced has a semitone between third markedly effect, which is different tone alleged key. by appellant It is fairly suggested by the cited ref- arrangement produces three that such properly erences. Claim 6 defines struck, makes when tones and, prior pellant’s art advance over the pro in the effect difference considerable duced, opinion, in our should have been allowed. richness which results in a give. A ordinary piano demon cannot Appeals decision of Board of comparing appellant’s instru modified, being stration affirmed as to claim piano conventionally tuned awith ment reversed as claim 6. be board and also before was made Modified. agree with the and we court fore result “The or difference J., JOHNSON, retired, dissents marked.” Whether it was an effect largely allowance of claim 6. otherwise improvement