in appellant's application would not be obvious to one skilled in the art after examining the cited references.

[1] The point of law which appellants raise was considered and passed upon by this Court in the recent case of In re Stover, 32 C. C. P. A. (Patents) 823, 146 F. (2d) 299, 64 USPQ 186. There we held that under well established authority no creative concept or invention is involved if the cited references, individually or collectively, suggest doing the thing that the applicant has done.

Obviously, the decisions relied upon by appellants are not applicable to the situation presented by the record in the instant case. The appealed claims, in their entirety, fail to disclose a creative concept for the reason that what appellants have done would be obvious to one skilled in the art after examining the cited references.

[2] With respect to appellant's complaint as to the use of the references by the Patent Office, it may be well to call attention to the fact that the object of an inventor who applies for a patent should be not only to obtain a patent for his invention, but also to obtain a valid patent that will not be subject to a successful subsequent attack for infringement.

It is our opinion based upon a study of the facts herein and the references cited that the Board of Appeals properly rejected the appealed claims.

For the reasons stated, the decision of the Board of appeals should be affirmed.

580 O. G. 337; 32 C. C. P. A. 1116; 150 F. (2d) 126; 66 USPQ 121 IN RE FLINT (No. 5021)

1. PATENTS-APPEAL IN GENERAL

On ex parte appeal, Court has before it commercial instrument built in accordance with application.

2. PATENTS-CONSTRUCTION OF SPECIFICATION AND CLAIMS-IN GENERAL PATENTABILITY-IN GENERAL-WORDS AND PHRASES

Claim calling for device for determining "median" of "group" of quantita tive measurements "seriately," in view of description and purpose set out in specification, excludes ascertainment of merely an average and contemplates more than two measurements; it is not anticipated by device determining average.

United States Court of Customs and Patent Appeals, June 22, 1945 APPEAL from Patent Office, Serial No. 412,275

[Reversed.]

G. A. Ellestad (G. F. Smyth of counsel) for appellant.

W. W. Cochran (E. L. Reynolds of counsel) for the Commissioner of Patents

[Oral argument May 1, 1945, by Mr. Ellestad and Mr. Reynolds]

Before GARRETT, Presiding Judge, and BLAND, HATFIELD, JACKSON, and O'CONNELL, Associate Judges

BLAND, Judge, delivered the opinion of the court:

The Board of Appeals of the United States Patent Office affirmed the decision of the Primary Examiner in finally rejecting, upon the disclosure of a prior art patent, claims 1, 2, 6, and 7 of appellant's application for a patent relating to a median device, and appeal has been taken here from the board's decision.

Fifteen claims covering the device have been allowed, but the instant claims are broader in scope than those allowed. Claim 1 is illustrative of the subject matter of the appealed claims, and it reads as follows:

1. A device for determining the median of a group of quantitative measurements comprising operating means movable for making said measurements, movable indicating means operatively connected to said operating means and seriately movable thereby in accordance with movement thereof in making each measurement of the group, said indicating means being constructed and arranged to indicate independently the value of each measurement of said group, and means for determining the median value of the group of measurements indicated by the relative positions of said indicating means. [Italics ours.]

The invention relates to a calculating mechanism or device for obtaining the median value of a group of quantitative measurements. In his specification, appellant states that his device may be used with many types of measuring instruments, or may even be used separately from any instrument. The particular embodiment disclosed, however, shows the device adapted to a navigational instrument, such as a bubble octant or bubble sextant. Instruments of that character are used in the art of navigation to determine the altitude of some celestial body. As pointed out in the specification, the customary practice is to make a number of altitude observations or measurements and to determine the median value of the group of measurements, which value is employed in computing latitude and longitude. It is clear from the specification that a device which determines the median value of a group of quantitative measurements performs a function wholly different from any device which merely ascertains the average of such a group.

[1] We have before us one of the commercial instruments built in accordance with the application. Its label states that it is an "Aircraft Octant." It weighs 4 or 5 pounds, has various reflectors, lenses, numeral charts, and a series of disks, all of which function together when used with a battery to determine the median of a group of figures. It is emphasized in the application that for the purposes for which the device is to be used, the ascertainment of the average of a group of

figures would be useless, whereas the ascertainment of the median value • leads to satisfactory results.

The appealed claims were rejected by the examiner upon the disclosure of the Walker patent, No. 1,638,973, issued August 16, 1927. The examiner was of the opinion that the claims did not distinguish over that patent because, in his view, they depend for patentability upon "functions vaguely implied in the word 'seriately.'" He was also of the opinion that the word "seriately" did not define structure and was therefore indefinite.

The board did not expressly disagree with the examiner, but it went into the whole question, discussed the invention of appellant and the Walker reference in more detail, and showed a thorough knowledge of appellant's contentions and the difference in meaning between the terms "median" and "average." However, it agreed with the examiner that the claims were broad enough to read upon Walker.

The Walker patent relates to an apparatus to be used to measure distances traveled by ships. We deem it advisable here to set out Fig. 1 of that patent and Fig. 9 of appellant's application. [See p. 1119.]

It will be observed that Walker has two sets of three dials each, an upper set and a lower set. These sets operate alternately at intervals of one minute. The pointers of the left-hand dials are electrically connected to the port propeller of the ship, and those of the right-hand dials are similarly connected to the starboard propeller. In each set, the pointer of the center dial is connected with those of the left-hand nad right-hand dials through a differential mechanism, so that it indicates the average of their movements. At the bottom of Fig. 1 three registers are shown. That at the left indicates the revolutions of the port propeller; that at the right, the revolutions of the starboard propeller; and that at the center, the average. The two sets of dials are operated alternately so as to permit the conversion of propeller rotation indication to an indication of actual distance traveled by the ship.

Walker was interested only in ascertaining the average of two measurements or indications, namely, those of the revolutions of the two propellers. The device of appellant works upon a wholly different principle. Appellant does not seek to ascertain the average between two movements or measurements. For reasons presently stated, we are of the opinion that the record as a whole shows that the whole purpose of appellant's device is to ascertain the median value of more than two measurements.

The Board of Appeals, in affirming the action of the examiner, stated:

Appellant argues that the device of Walker operates on an entirely different principle than applicant's device and gains a different end result and that the

device of the reference does not provide the median value of the two propeller speeds of a ship but the average of the two speeds as determined by a differential mechanism.

It is not apparent that there is a difference in so far as the claims are concerned in this attempt to distinguish between median value and average. The Walker patent seems to disclose means for making measurements, that is, for counting the number of revolutions and other means for counting another number of revolutions made in the same length of time as the first but different in number and the means for indicating the average of the two is shown in Fig. 1 of the patent. There is also means for indicating the number of revolutions made by each measurement and it is not apparent that merely stating that these means are movable in series or seriately amounts to a patentable structural distinction. The claims do not seem to be limited to any particular number of measurements so that two different measurements as made by the Walker patent and the mean average of these two as shown by the mechanism disclosed in Walker appears to satisfy the terms of the claims.

In support of the decision of the board, the Solicitor for the Patent Office in this court states, in substance, that the Walker patent does determine a median and is not confined solely to determining an average. He states that one of the definitions of the word "median" given by Webster is "being in the middle; occupying an intermediate position." Then he points to Walker and states that the average reading on the Walker device occupies the middle and therefore is the median. He furthermore argues, in substance, that appellant's device, as disclosed in the specification and claims does not perform a function which is confined to ascertaining the median of more than two measurements, and that therefore the appealed claims are so broad as to read upon a structure which, admittedly, is designed to determine only averages. He seems to have some doubt that there is a difference between a median and an average, for he makes the following statement in his brief:

Finally, even if "median" were not satisfied by the average of two it is not thought that the broad use of this term in an apparatus claim imparts anything patentable. So far as apparatus is concerned there would seem to be no patentable distinction between indicating a median and an average, assuming them to be different things.

It is clear to us that ascertaining the median of a series or group of more than two numbers or measurements is wholly distinct and entirely different from ascertaining the average; and we think the application of this principle in a composite, workable device, which corrects error and performs a new and useful function, involves invention and is entitled to patent protection commensurate with the scope of the invention.

Appellant, of course, is entitled to such patent protection as he claims in the appealed claims only if they define structure patentably different from the Walker device. The Patent Office tribunals have not complained about the form of the claim. They have not urged