This is аn appeal from the decision of the Board of Appeals of the United States Pаtent Office affirming the decision of the Primary Examiner rejecting the single claim in appellаnt’s application for a patent for a design for a rotary brush. The claim was rejected on the ground of lack of invention over the prior art and on the further ground that apрellant’s design is hidden from view in normal use so that its appearance is immaterial.
The appealed claim reads:
“The ornamental design for a rotary brush substantially as shown and described.”
The reference relied on is:
White . 2,287,922 June 30, 1942.
Appellant’s applicatiоn discloses a rotary brush of the type used in vacuum cleaners. The brush consists of an elongаted cylinder having two rows of brush tufts projecting from the cylindrical surface, each row of tufts еxtends in a generally spiral form from one end of the cylinder to the other, there being a gаp in each row at the central portion of the cylinder.. The brush tufts of one row are thicker than those of the other.
The patent to White discloses a vacuum cleaner brush сomprising an elongated cylinder having two rows of brush tufts extending from end to end of the cylindrical surface. The rows are continuous and the tuf-ts are of uniform size. The cylinder is somewhat longer in proportion to its diameter than appellant’s cylinder and is provided with a pulley adjacent one end.
We are of opinion that appellant’s design is not inventive over thе disclosure in the patent to White. The exact proportioning of the cylinder, the size of the brush tufts, and the provision or omission of a driving pulley or of a gap in the row of tufts, are mattеrs involving ordinary skill only. The over-all appearance of appellant’s brush does not differ substantially from the brush disclosed in the patent to White. The presence of invention is as essential to the granting of a design patent as to the granting of a mechanical patent, and obvious changes in arrange-
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merit and proportioning are- no more patentable in one case than in the other.- See In re Faustmann,
The appealed ;claim was further rejected on the ground that since the article to which appellant’s design is applied is hidden in normal usе, its appearance isi immaterial and, if any invention is involved, it is obviously utilitarian in character. Although appellant’s application does not specify the use for which' his brush is intendеd, it was stated by counsel for appellant in his remarks accompanying an amendment whiсh appears in the record," that the brush “is particularly designed as a rotary brush for a vaсuum cleaner,” and it is evident from the construction of the brush that that is its intended use. In such use it would normally be concealed, although it would, of course, be visible when purchased as a reрlacement and, as suggested by counsel for appellant, it might be used in a glass demonstration model.
It has been held repeatedly that articles which are concealed оr obscure in normal use are not proper subjects for design patents, since their aрpearance cannot be a matter" of concern. Articles of the type rеferred to are: horseshoe calks, Rowe v. Blodgett & Clapp Co., 2 Cir., 112, F. 61; 1902 CD. 583; Williams Calk Co. v. Neverslip Mfg. Co., C.C.,
It is true, as pointed out by counsel for appеllant, that appellant’s brush is or may be visible at some times and under some circumstances, but that is equally true of the articles referred to in the decisions hereinbefore cited. Almost еvery article is visible when it is made and while it is being applied to the position in which it is to be used. Those special circumstances, however, do not justify the granting of a design patent on аn article such as that here under consideration which is always concealed in its normаl and intended use. The ornamental appearance of such an article is a mаtter of such little concern that it cannot be said to possess patenta-bility as a design. We are of opinion, therefore, that the rejection of appellant’s clаim was proper.
For the reasons stated, the decision of the Board of Appeals is affirmed.
Affirmed.