period and also reveals a large volume of sales during this same period, and since a substantial doubt is raised as to the likelihood of public confusion, such factors require this court to resolve that doubt in favor of the first user. For these reasons we affirm the decision of the Assistant Commissioner. WORLEY, C. J., dissents. JOHNSON, J., concurs as to "PLEXICHROME" and dissents as to "PLEXICOLOR.” 47 CCPA 735; 751 O.G. 269; 272 F. 2d 954; 124 USPQ 105 PATENTS IN RE HARRY B. FUGE (No. 6442) 1. PATENTABILITY-ANTICIPATION-PATENTS-IN GENERAL Even though patent is not printed publication, it is reference to extent that it protects rejected invention. 2. FOREIGN PATENTS At the least, scope of Belgian patent embraces everything included in résumé at end of specification. 3. PATENTABILITY-ANTICIPATION-PATENTS-FOREIGN Belgian patent, whose effective date as a patent is more than year prior to applicant's filing date, is statutory bar under 35 U.S.C. 102(b) since invention protected by patent is same in all essential respects as that to which applicant's claims are directed. United States Court of Customs and Patent Appeals, December 7, 1959 APPEAL from Patent Office, Serial No. 300,285 [Affirmed.] Chester A. Williams, Jr., for appellant. Clarence W. Moore (J. Schimmel of counsel) for the Commissioner of Patents. [Oral argument November 2, 1959, by Mr. Williams, Jr., and Mr. Schimmel] Before WORLEY, Chief Judge, and RICH, MARTIN, and SMITH, Associate Judges, and Judge WILLIAM H. KIRKPATRICK' WORLEY, Chief Judge, delivered the opinion of the court: This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming the final rejection by the Primary Examiner of claims 19 and 20 of appellant's application for a patent on a positional control system for sewing machines. The claims read: 1 United States Senior District Judge for the Eastern District of Pennsylvania, designated to participate in place of Judge O'Connell, pursuant to the provisions of Title 28. United States Code, Section 294 (d). 19. In control mechanism for a sewing machine, in combination, a main driving means with energizing means therefor, a rotary part rotatable with and driven by said main driving means, a brake element journaled for rotational movement with said rotary part and adapted to cooperate with said part to retard the machine, a slow speed driving means operatively connected with said brake element to drive said brake element at a speed slower than the speed of said part, an electrical circuit for operating the slow speed driving means, means to simultaneously energize said electrical circuit to operate said slow speed driving means and render the main driving means ineffective to operate the sewing machine, means movable synchronously with the machine, and electrical circuit including means cooperative with said synchronously movable means and effective only when said part is retarded by said brake element to a predetermined rotational speed to permanently open said electrical circuit and stop the machine with the rotary part in a substantially predetermined angular position. 20. In control mechanism for a sewing machine as defined in claim 19, and means preventing the operation of said circuit opening means prior to the synchronization of the brake element and the rotary part of the machine. The sole reference relied on is the patent to Wiggerman (Belgian), 501,285, issued February 28, 1951. Appellant has also included in the record and discussed in his brief the patent to Brinkman et al., 2,747,715, issued May 29, 1956, from which the claims here were copied. That patent corresponds generally to the Belgian patent. The oath in the Brinkman et al. application acknowledges the Belgian application, on which the Wiggerman patent was granted, as an application for patent on the same invention as Brinkman et al. The disclosure of appellant's own application and its sufficiency to support the claims are not in issue here and need not be considered. Appellant's application was filed July 22, 1952, and he later included an affidavit under Patent Office Rule 131 which the examiner found to be sufficient to antedate the publication date, May 9, 1952, of Wiggerman. Appellant contended below that Wiggerman could not be accorded either the date of its granting or the date it became available to the public, but was restricted to its publication date. However, in view of In re Ekenstam, 45 CCPA 1022, 256 F. 2d 321, 118 USPQ 349, decided after the decision of the board in the instant case, but prior to the hearing before this court, appellant's counsel acknowledged the applicability of that decision to the case at bar and during oral argument conceded that the reference has an effective date as a patent more than one year prior to appellant's United States filing date. [1] It is well settled, and not disputed here, that a patent even though it is not a printed publication is a reference to the extent that it protects the rejected invention. Accordingly, if the Wiggerman patent protects the invention defined in the appealed claims it is a statutory bar to their allowance. Wiggerman relates to a device for causing a sewing machine to stop with the needle in its upper position, and comprises a brake disk fixed to the flywheel shaft of the machine and having a control pin on its periphery which is in its highest position when the needle of the machine is also in the highest position. Mounted adjacent to the brake disk and on a shaft coaxial with the flywheel shaft is an electromagnetic brake element also of disk form which, when the magnet is energized, moves against the brake disk and retards its motion. The supply of current to the magnet is controlled by a switch which is actuated by the control pedal of the sewing machine, so that the switch will be closed to energize the magnet as the pedal moves from the on to the off position. At the same time the switch closes a circuit which starts an electric motor mounted on the shaft of the brake element and operating at a speed substantially lower than that of the flywheel shaft in the same direction as that shaft. Means are provided which become effective when the flywheel shaft slows to a speed below that of the motor to shift the end of a contact element into the path of the control pin on the brake disk at the top of its movement so that when the pin reaches that position it will lift the contact, thus opening the motor circuit and stopping the motor and the sewing machine in that position. While Wiggerman does not illustrate the sewing machine motor or the connections for operating it, the specification states that when the control pedal is released "the rotatory motor of the sewing machine ceases receiving current." There is thus a clear disclosure that the machine is driven by an electric motor whose circuit is opened and closed by the control pedal. Everything covered by the appealed claims was patented in Belgium by Wiggerman. It is to be noted that those claims orginated in and were copied from the Brinkman patent, having a disclosure which, so far as those claims are concerned, is substantially identical with that of Wiggerman except that Brinkman diagrammatically illustrates the sewing machine motor and a pedal-operated switch for controlling it, whereas Wiggerman discloses them only in the specification. The Wiggerman patent does not have any portion which is designated as a claim, but in the decisions of the Patent Office and briefs filed here it is assumed that the resume at the end of the specification is a definition of what is protected. [2] We need not decide whether that assumption is correct, since it is evident that, at the least, the scope of the patent embraces everything included in the resume. The resume of the patent is in a form quite different from the form required of patent claims in this country, thus a side-by-side comparison is not possible. We think it clear, however, that the resume expressly covers all elements of the appealed claims except the "main driving means with energizing means therefor" and the "means to simultaneously energize said electrical circuit to operate said slow speed driving means and render the main driving means ineffective to operate the sewing machine." Those are the elements principally relied on by appellant as distinguishing the appealed claims from the resume. It is true, as appellant contends, that the Wiggerman resume does not state in so many words that there is a main driving means. It does, however, recite a rotary sewing machine and refers to a control element which rotates with the machine. Further, it states that the "rotatory" device, which is the slow speed motor, may be connected "by the control element of the machine itself at the time of disconnection thereof." In our opinion the above excerpts, taken in context with the remainder of the resume, necessarily contemplate that there shall be a main motor for operating the sewing machine, and that its control element may be so coordinated with that of the slow speed motor that the circuit of the latter will be closed when the main driving means is rendered ineffective by opening its circuit. [3] We have given careful consideration to the thorough discussion in appellant's brief, but are of the opinion the invention as protected by the Wiggerman patent is the same in all essential respects as that to which the appealed claims are directed. That patent is therefore a statutory bar under 35 U.S.C. 102 (b). The decision is affirmed. 47 CCPA 738; 751 O.G. 271; 272 F. 2d 957; 124 USPQ 107 PATENTS Decided December 7, 1959 IN RE WILLARD E. CROTTY (No. 6463) 1. DESIGNS-PATENTABILITY—TESTS It is appearance of design as a whole which is primarily determinative of issue of patentability. 2. DESIGNS-PATENTABILITY-TESTS OF PATENTABILITY-DOUBT AS TO INVENTION It is almost always possible to select from prior art elements which, if assembled in proper manner, will approximate design shown in application, but fact that such a selection can be made does not necessarily preclude presence of patentable invention; however, not every change in proportions of parts is a patentable matter, the question being whether changes result in new, original, ornamental, and unobvious appearance of design as a whole; claim is allowed where applicant's article differs in appearance from that of reference, existing similarities resulting merely from fact that they are designed to perform same function; comparison of overall appearance of designs creates substantial doubt that references are adequate to support rejection; doubt is resolved in favor of applicant. United States Court of Customs and Patent Appeals, December 7, 1959 [Reversed.] APPEAL from Patent Office, Serial No. D-35,943 Pyle and Fisher (Ray S. Pyle of counsel) for appellant. Clarence W. Moore (S. Wm. Cochran of counsel) for the Commissioner of Patents. [Oral argument November 9, 1959, by Mr. Pyle and Mr. Cochran] Before WORLEY, Chief Judge, and RICH, MARTIN, SMITH and JOHNSON (retired), Associate Judges WORLEY, Chief Judge, delivered the opinion of the court: This appeal is from the decision of the Board of Appeals of the United States Patent Office affirming the rejection by the Primary Examiner of the single claim of appellant's application for a patent on a design for a life jacket. The claim reads: The ornamental design for a Life Jacket as shown and described. The references relied on are: Gibson, 1,670,887, May 22, 1928. Appellant's application discloses a life jacket comprising two identical buoyant pillows of substantially rectangular shape, designed to fit across the chest and back, respectively, of the wearer. They are joined at their ends by relatively wide flat bands of slightly less width than the pillows and adapted to fit under the arms of the wearer. Shoulder straps are secured to the tops of the pillows at points adjacent their ends. The Denton patent, the principal reference, shows a life jacket in which the front and back are composed of two matching buoyant pillows which are juxtaposed and strapped together to provide a substantially unitary pillow of generally rectangular shape, but with an arcuate depression which, in the front pillow, will lie below the chin, and in the back pillow, below the back of the head when the jacket is in place. The pillows are connected by shoulder straps in substantially the same manner as in appellant's jacket, but are connected by relatively narrow straps which pass under the arms of the wearer. The Straits and Gibson patents were cited to show use of rectangular pillows in life preserving devices. It was the position of the Patent Office that no invention would be involved in substituting rectangular pillows as shown by Gibson and Straits for the two-piece pillows of Denton and using wide bands under the arms in place of Denton's narrow bands. [1] It is, of course, well settled that it is the appearance of a design. as a whole which is primarily determinative of the issue of patentability. In re Russell, 44 CCPA 716, 239 F. 2d 387, 112 USPQ 58, and cases there cited. Viewed as a whole, we think appellant's jacket differs in appearance from that of Denton. Such similarities as there are |