*1
(J. Ralph
up-
Ely, Akron,
Albert L.
of
Ohio
conclusion
Our
the courts.
Barrow,
Akron, Ohio,
of
Charles M.
at'bar,
and
case
facts
on the
counsel),
Thomas,
C.,
of
D.
of
Washington,
facts, we
and,
of such
in view
rejecting
erred
of
Board
in issue.
claims here
Hostetler, Washington, D.
Tl A.
of
we
(Howard Miller, Washington,
of
of
S.
In view
other
discuss
unnecessary to
of counsel),
for Commissioner of Patents.
reached,
par-
of
the briefs-
questions raised
GRAHAM, Presiding Judge,
Before
ties.
GARRETT,
HATFIELD,
us,
hold
we
before
record
Upon the
LENROOT,
Judges.
Peiler
of
issue
involved,
GRAHAM,
Judge.
Presiding
of
to the allowance
the decision
An
filed
the United
was
is reversed.
Office
the Patent
of
by appellant,
Patent
on March
States
Office
19,
“im-
1925, for a mechanical
on
Reversed.
provements in balloon tire construction.”
Nine claims were attached to the
Ex-
rejected
all of which were
Appeals.
of
aminer
the Board
re HARGRAVES.
rejection
grounds for
on the
First,
patenting,
in view
board were:
double
64,352,
appellant's design patents,
Des.
17, 1931.
April 1, 1924,
64,972,
June
Des.
24,
Second,
1 and were
claims
anticipated by
reference to
23, 1920, me-
54,797, of March
No.
Cozakos,
1,468,439,
chanical
No.
September 18, 1923,
27,
Waters,
63,382,
No.
of November
anticipated
claim 4 is also
references;
5,3,
7, and
6,
that claims
said
8,
anticipated by
to mechan-
454,115,
June
patent to
No.
rejected
on
claim 9
also
last-named
reference.
court, appel-
hearing
before this
On
1, 2,
appeal
claims
lant dismissed his
as to
only
relying
on claims
typical:
and are
Claims 3
including
“3. A
tire construction
balloon
having
plurality
con-
of central
a tread
a circum-
tinuous circumferential ribs and
on each
non-skid buttons
ferential series of
angu-
tread,
said buttons
side
said
disposed
edges.”
larly
free
compris-
A“9.
balloon tire construction
circum-
ing
having a
a tread
continuous
por-
on
side of
center
ferential rib
each
tion thereof.”
alleged
The Board thus describes the
:
tire
alleged
“The
having a
comprising
construction
tread
hav-
circumferential
central continuous
transversely extending
ing
projections,
of said rib
on
side
each
non-skid buttons
together to form circumferential
connected
*2
901
by
by
exhausted
Miller v.
separated
first
from the central
ribs
Mfg. Co.,
Eagle
151
S.U.
S. Ct.
grooves.”
38 L.
121;
Signal
Protex
Do. v.
design
Hargraves
pat-
Each of the two
43; Bayley
Feniger
(C.
A.)
F.(2d)
C.
11
design for
ents recites that it is for a
“re-
(C.
&
D. A.)
v. Standard Art Glass
249
Sons
tires,”
displays,
substance,
in
silient
478;
White
&
Co. v. Converse
Son Co.
by
drawings
design
identical
shown
(C.
A.)
311;
F.(2d)
20
President
C.
Sus
specification
application here,
in tho
(D. C.)
pender Co.
233
v. Maewilliam
fairly
in
is
which is
set out
the claims.
It
433;
Neverslip Mfg. Co.,
su
.Williams
by
applicant here,
spec-
claimed
in
Ms
pra.
ification,
advantage
a
is obtained
that
From a consideration of this
tires,
low-pressure
balloon or
in the use of
appellant’s piior patents,
by
and the law
means of the
conformation
stated,
quite apparent
as above
it
to
him,
decreasing noise,
by
in
in
shown
non-
appellant
that
in his
court
has
qualities,
prevent
wear
slrid
due
necessarily
nothing
which
“wiping.”
right
volved
the exclusive
to use and en-
design
It is well-established law that a
joy
monopoly
design patents.
of his
patent may anticipate
patent
Therefore to
him now a mechanical
Walter,
F.(2d)
vice
39
versa.
re
patent
simply
would he
to further extend
982;
724,
F.(2d)
Dalton,
17
P.
C. C. A.
re
37
beyond
monopoly
period contemplat-
A.
826;
Eifel,
17 C. C. P.
In re
4
ed
law.
582;
35
17
F.(2d) 70,
C.
P. A.
C.
re
pat-
contends
Staunton,
P.
F.(2d) 63,
17 C. C. A.
tires,
ent extends to balloon
there-
Rutledge,
47 F.(2d)
18 C. C. P.
something patentablv
fore he has shown
dis-
(C.
Myers
A.)
Lein
A.
et al.
C.
design
from
patents.
tinct
His
105 F.
White Co. v. Converse & Son
patents
use,
upon
were for
however,
“re-
(C.
A.)
F.(2d)
See, also,
C.
Co.
tires,” and no
silient
reason is made
cases hereinafter cited.
why
parent
they
upon
not he used
true,
law,
While it is
aas matter of
tires,
upon any
well
as
as
other re-
patent
may
one
a mechanical
tire.
silient
design patent upon
subject-mat
tho same
Finally, appellant presents this novel
ter,
patentable
there must be a clear
distinc proposition:
design patents
That his
aré
tion between
two inventive ideas in
upon
being
unpatentable subject-
void as
an
principle
volved. This
is well stated
the matter, namely,
treads,
tiro
and that there
language:
pre-exist
fore he stands as one
“If the
feature which the novel esthetic ing patent,
should bo
effect resides is the identical feature which upon his mechanical
Upon
device.
the in
so that a struc-
validity
patents,
of his
he cites sev
embodying
ture
tho mechanical
eral cases where courts have held
pat
embody
would,
necessity,
design,
upon tire treads
ents
to be void. Follen v.
it
whether two
(D.
Lambert Tire Rubber
8 C.) F.(2d)
&
separate patents,
one for a
the oth-
Tyre
Dunlop
Pashek v.
& Rubber Co.
er for a mechanical
for
(D. C.)
F.(2d) 640; North British Rub
could ho
(C.
ber Co.
Racine Rubber Tire Co.
other.”
*