120 F.2d 736 | D.C. Cir. | 1941
This is a suit
The references include Powell patent 1,-735,789 (1929) for a muffler, for the exhaust from engines; the British Hooton patent 121,212 (1918) for silencing the exhaust from engines; the German Zeppelin patent 356,018 (1922) for a muffler; and certain treatises. Powell uses a number of cups. Hooton uses branch chambers, which “may be of various forms.” Zeppelin also uses branch chambers.
The patents just cited do not use the term resonance, and appellant’s expert testified without dispute that they do not operate as resonators. Appellant contends, perhaps correctly, that the patentees in question concerned themselves with gas pulse impact and not with sound waves. But Bourne patent 1,845,903,
Appellant urges that, although the appealed claims were finally rejected by the examiner and the Board of Appeals in the Patent Office, claims as broad had previously been approved by two other examiners. Appellant urges that the doubt thus created should be resolved in favor of the inventor, and against the Patent Office and the District Court. We agree that the presence or absence of invention is doubtful in this case. But “Whatever else may be said of older decisions
The substance of Rayleigh’s work was published at least as early as 1896. Appellant urges that the lapse of many years, until Wilson’s application was made in 1930, without the invention of an adequate muffler for automobile engines, is strong evidence that Wilson’s device is inventive and appellant is entitled to a patent. A sufficient answer is that appellant has been granted a patent on several forms of Wilson’s device. Moreover it may well be that, although some efforts to develop an effective muffler went on throughout the period, until about 1930 there was relatively little interest in the matter; for, as appellant’s expert put it, “There are noises arising from the body, various vibrating parts of the car, and its engine which a few years ago were very large. Through the skill of the engineer, they have been gradually reduced. * * * ” The more other noises are reduced, the more noticeable and objectionable a given quantity of exhaust or intake noise becomes.
Appellant now argues that the denial of claims 109 and 126 is inconsistent with the granting of claim 92, which was rejected by the Patent Office but allowed by the District Court; also that the District Court failed to make “fact” findings, in support of its “conclusion of law” that the appealed claims were not patentable over the references. But appellant’s statement of the points to be relied upon on the appeal refers to neither of these points, and it does not appear that either was brought to the attention of the District Court. Therefore we do not consider them.
Affirmed.
Under R.S. § 4915, U.S.C.A. Tit. 35, § 63.
Though this patent was issued in 1932, the application was filed in 1928.
Acoustic Transmission with, a Helmholtz Resonator or an Orifice as a Branch Line. 27 Physical Rev. 487.
E.g., In re Coykendall, 58 App.D.C. 280, 29 E.2d 808.
Minnesota Mining & Mfg. Co. v. Coe, App.D.C., 118 F.2d 593, 594.
Abbott v. Coe, 71 App.D.C. 195, 109 F.2d 449; Eppensteiner v. Coe, 72 App.D.C. 169, 114 F.2d 457; Wolf et al. v. Coe, 72 App.D.C. 224, 112 F.2d 857; Daniels v. Coe, App.D.C., 116 F.2d 941; Forward Process Co. v. Coe, App.D.C., 116 F.2d 946.