285 F. 991 | D.C. Cir. | 1923
Cranmer’s application for a patent on a device which consists of a, pneumatic tire casing of the standard beaded type, having incorporated within its- tread portion a transversely arched rigid reinforcing member, which is imbedded therein and covered with a layer of fabric to protect the inner air tube of the tire, was rejected by the Commissioner of Patents, and he appeals. Of the three appealed claims, we set out claim 1:
In a pneumatic vehicle tire curved in transverse section, having an elastic inflatable inner air tube and an outer fire casing, a rigid annular band, conforming approximately in transverse section to the curvature of the tire and having blunt rounded edges, countersunk into the inner side of the tread portion of the said tire casing.
To the contention of applicant that the positioning of his metallic band between the outer tire casing and the inner Tube would require invention, the Commissioner answered that the references negative this proposition, and added that, whil'e applicant’s band does not extend as far from side to side as does Heina’s, yet it finds a prototype in Karistrom’s, and that, while his band is rigid enough to stiffen the tread, Karlstrom seemed to have the same purpose in mind.
Continuing, the Commissioner said that claims 2 and 3 are substantially identical; that they add to the elements of claim 1 a flexible protecting fabric, extending between the inner annular band and inner air tube; that Heina, at 17, shows such a protecting fabric holding his metal strip in place, and that the obvious use of some such covering seems too slight to support a patent. He refused to allow additional claims which were suggested by the applicant, on the ground that they were based on too small a refinement to be regarded as patentable.
The applicant appeals with much earnestness to the principle that a combination of old elements which produces a new result, or effects an old result in a new and materially better way, is patentable. This is undoubtedly so, but we do not think it has any application here, because the applicant has not produced new results, or old results in a new and materially better way. He has done nothing more than aggregate what others had accomplished before him, except, perhaps, in particulars too refined to support a patent. In re Merritt, 36 App. D. C. 122; Huebner-Toledo Breweries Co. v. Mathews Gravity Carrier Co. (C. C. A.) 253 Fed. 435; Edwards v. Dayton Mfg. Co., 257 Fed. 980, 169 C. C. A. 13_ 0.
Appellant presents a substitute claim in his brief. This claim was never, considered by the Patent Office tribunals, and therefore is not properly before us. We sit as a Court of- Appeals, not as a tribunal of first instance. Even if we had power to pass upon the claim, we would have to hold it is not patentable, for the same reasons as those upon which we reject the claims properly here.
The action of the Commissioner is affirmed.
Affirmed.