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Greengate discloses the use of foamed polyurethane as a tank seal envelope filler. The filler or core d is trapped between the tank wall and roof edge and may have a circular or rectangular cross-section as shown in Figs. 1 and 3 reproduced below:

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The examiner rejected the claims as unpatentable over CB&I in view of Greengate, taking the view that it would have been obvious to one of ordinary skill in the art "[t]o substitute for the gaseous type compressible material of the seal shown in Fig. 1 of the primary reference a toroidal foamed plastic compressible material of circular cross section and of less cross sectional area than the cross sectional area of the envelope 13 as taught in the secondary reference

The board affirmed, stating: It appears to us that persons of ordinary skill in the art approaching the seal shape and operation depicted in the base reference would find it obvious to replace the pressure-producing resilient ring by a ring rendered resilient through the use of foamed material. It appears to us that it would be obvious to fill the seal space of the primary reference with such deformable material while the seal was unconfined. The result would present a relaxed contour greatly exceeding the space in the assembly and upon assembly produce a resilent force comparable to the gas pressure form. Whether such undistorted form be circular or polygonal in cross section does not appear to bear any relationship to its final functioning or to be unobvious. The enclosure of the primary reference has the stated sectors and any seal so held will clearly tilt a bit upon the reversal of motion along the wall. This is all that is required by claim 18.

Appellant's argument in support of his position that the board erred is that none of the art, taken individually or collectively, makes a teaching which would be the basis for obviousness. Moreover, it is urged, even if the reference combination is proper, the claimed structure is not anticipated. Finally, appellant contends that the board's position that "all that is required by claim 18” is that the seal "tilt a bit” is a misinterpretation illustrating a lack of proper understanding of the invention and grounds in itself for reversal.

The primary distinction between the prior art and the claimed invention, urged in appellant's brief before us and set forth in the specification, is concerned with the controlled rolling of the core or the tank roof moving up and down within the tank. An amount of rolling “is calculated to assure minimal shear stresses being developed in the core as the direction of travel of the roof 11 changes, while shifting the axis of compression of the core 24 to minimize compression set along any one axis.” This feature is expressed in the claim language “the relatively greater span of said outermost envelope side permitting said core of foam to roll so that its compression axis rotates through up to 90 degrees when the direction of travel of the roof changes * * *."

We are, however, unconvinced of error in the board's position. The claimed structural features of the envelope are strikingly similar to those shown in the reference. The claim calls only for an envelope permitting rolling “through up to 90 degrees” and we think it apparent that the envelope construction of the reference disclosure would inherently permit a degree of rolling within the claim language. This view is further evidenced by the fact that the quoted portion of CB&I, appearing hereinbefore, contemplates movement and distortion. We are not convinced on this record that appellant's invention produces results not produced by the prior art.

[1] While we agree with appellant that hindsight reconstruction of the prior art in light of an applicant's disclosure is to be vigorously guarded against and condemned, we feel that apposite here is this court's statement in In re Rosselet, 52 CCPA 1533, 347 F.2d 847, 146 USPQ 183 (1965):

* it is our view that the test of obviousness is not express suggestion of the claimed invention in any or all of the references but rather what the references taken collectively would suggest to those of ordinary skill in the art * *

Properly evaluated and considered as a whole, the references here render obvious the claimed invention. The decision of the board is, therefore, affirmed.

426 F. 2d 401; 165 USPQ 718




"Custom-Blended” has a merely descriptive significance as applied to blended gasoline; mark has not acquired secondary meaning.

United States Court of Customs and Patent Appeals, May 28, 1970

Appeal from Patent Office, Serial No. 211,939


Donald R. Johnson, attorney of record, for appellant.

Joseph Schimmel for the Commissioner of Patents, Mrs. D. Lenore Lady, of counsel.

(Oral argument May 6, 1970 by Mr. Johnson and Mrs. Lady)

Before Rich, ALMOND, BALDWIN, LANE, A88ociate Judges, and FISHER, Judge,

sitting by designation

ALMOND, Judge, delivered the opinion of the court:

Sun Oil Company brings this appeal from the decision of the Trademark Trial and Appeal Board, 155 USPQ 600 (1967), affirming the examiner's refusal to allow appellant's application to register “CUSTOM-BLENDED” for gasoline on the ground that the mark is merely descriptive of applicant's goods within the meaning of section 2(e) (1) of the Trademark Act of 1946 (15 USC 1052(e) (1)) and because the evidence submitted has not clearly established a secondary meaning, denoting that the mark has become distinctive of appellant's goods, within section 2(f) of the Act (15 USC 1052(f)).

The application seeking registration on the Principal Register alleges use since 1956. The mark is displayed on special pumps, called “blending pumps," at appellant's service stations. The application is designated a continuation of an earlier application filed July 13, 1961, in which registration on the Principal Register was sought for the same mark for gasoline and refused by the Trademark Trial and Appeal Board on the ground that the mark was merely a descriptive connotation to purchasers of applicant's goods.?

In his Answer, the examiner predicated refusal of registration on the ground that CUSTOM-BLENDED is merely descriptive of appellant's goods within the meaning of section 2(e)(1) because it is so highly descriptive of appellant's blended gasoline that it is incapable of becoming distinctive as claimed. It was the examiner's opinion that the term CUSTOM-BLENDED merely informs purchasers that various grades of gasoline from appellant's blending pumps are custom blended for them; that the word "custom" is commonly used to indicate things made to order; that it has very little trademark significance when used in connection with blended gasoline; that appellant is not entitled to exclusive appropriation of this term, which so aptly describes custom-blended gasoline; and that the conclusion derived from surveys conducted by appellant is that purchasers who are acquainted with appellant's Blue Sunoco gasoline know that such gasoline is custom blended.

1 Serial No. 211,939 filed Feb. 12, 1965. In re Sun Oil Company, 144 USPQ 103 (1964).

In affirming refusal of registration, the board stated that granted that the generic terms for appellant's blended gasolines are pumpblended and multiple-grade gasolines, there is no question that “ CUSTOM-BLENDED' has a merely descriptive significance in that it will immediately indicate to patrons of applicant's service stations that the various grades of gasoline dispensed thereat are custom blended to their needs and requirements"; that in view thereof and the decision on applicant's prior application, it was incumbent upon applicant to show that the facts and circumstances since that decision have changed in that“ CUSTOM-BLENDED' now serves as an indication of origin of applicant's gasoline to the general public”; that the case, therefore, turned upon the sufficiency of applicant's evidence in that regard; that “the only definite conclusion that can be drawn from the surveys is that purchasers who are acquainted with applicant's 'SUNOCOgasoline know that such gasoline is custom blended"; that this manifestly does not support applicant's assertion that CUSTOM-BLENDED has acquired a secondary meaning as an indication of origin for gasoline, and that upon the record presented CUSTOMBLENDED does not possess anything “other than a descriptive significance to purchasers of gasoline.”

[1] We have given a synoptic analysis of the board's able, wellconsidered and exhaustive opinion without reiterating essential facts of record. These facts are detailed in their essence and relevancy and supportive of the board's conclusions so clearly and aptly enunciated in its decision. We, therefore, incorporate herein by reference the opinion of the board and affirm its refusal of registration. The decision of the Trademark Trial and Appeal Board is, accordingly, affirmed.

Rich, Judge, concurring:

agree with the result reached by the majority which is supported by an opinion largely relying on and incorporating by reference the

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