Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices ROBB, A. J.: Appeal from a decree in the Supreme Court of the District dismissing appellant's bill, filed under section 4915, Revised Statutes, as amended (35 U. S. C. A. sec. 63), to authorize the issuance of a patent. Appellant seeks a decree authorizing appellee to issue to him a patent for a superfluous hair remover. Claims 14 to 22, inclusive, are involved. Of these, 14 to 17, inclusive, are for an article of manufacture; and claims 18 to 22, inclusive, are for the method. Claims 14 and 18, illustrative of the two groups, are here reproduced: 14. An article of manufacture, comprising a hair remover for personal use, including a flexible carrier adapted to be rubbed over the hairy surface and having on its face an abrasive substance adapted to engage and break down the hair structure, said material being of a fineness and character to interengage with the hair structure, but in normal use incapable of scratching or impairing the skin, and said flexible carrier being adapted to be held by the hand and conform under pressure of the latter to the hairy surface over which it is moved. 18. The method of removing superfluous hair from the body, consisting in applying over the hairy surface an element having a layer of abrasive material of a fineness and character to interengage with the hair structure but in normal use incapable of scratching or impairing the skin, and gently rubbing the same over the hairy surface under a pressure to effect the breaking down of the hair structure without marring the skin. The article of manufacture is a flexible abrasive paper adapted to be rubbed over a hairy surface, the abrasive substance being of such fineness and character as to engage and break down the hair structure without scratching or impairing the skin. The Patent Office tribunals rejected these claims on two references-British patent to Crossley, No. 6,089 (1886), and the United States patent to Bligh, No. 646,065 (1900). The Crossley patent discloses an abrasive sheet coated with pumicestone (a volcanic substance). The Bligh patent discloses a "Shaving device" consisting of a handle supporting a frame, within which is mounted a roller. The periphery of the roller [according to the specification] has an abradingsurface, preferably of emery, which surface may be formed on the roller, or, if desired, a strip of emery paper or cloth of suitable size, as shown at B, may be secured around the roller. The roller is rotated by an auxiliary device. Again quoting from the specification, The abrading surface of the roller is held in contact with the face of the user and the roller given a continuous rotary motion at a high rate of speed and the roller moved over the face as the beard is worn away, the device to be used on a perfectly-dry face, no soap or water being used. It does not appear that the Bligh device, although patented 35 years ago, was ever manufactured. The fact that it has not been manufactured, in view of the great demand for a shaving device, is convincing proof that it is valueless,-merely an impractical idea. If the Bligh patent is suggestive of appellant's structure and method, it is strange that 35 years should have elapsed since the date of that patent before the public demand should have been met. It is in evidence that appellant's device has achieved great commercial success and that it is being sold "in every nation on the globe." Evidence of great utility may in some circumstances be accepted as evidence of invention. Wach v. Coe, 77 F. (2d) 113, 64 App. D. C. 235. Patents have been obtained in France, England, and Canada. It is a far cry from the Bligh theoretical and impractical shaving device, consisting of a rapidly revolving abrasive roller, to appellant's abrasive which has been demonstrated to be practical and useful in removing superfluous hair. Crossley in his patent of 50 years ago states that his invention relates to "emery and glass cloth and paper" and "polishing paper and cloth." He nowhere suggests that any of those materials would be suitable for breaking down hair and removing same from the human body without harm to the skin. The disclosure of a foreign patent is to be measured not by what may be made out of it, but what is clearly and definitely expressed in it. In re Ek, 19 F. (2d) 677, 57 App. D. C. 203; Carson v. American Smelting & Refining Co., (C. C. A.) 4 F. (2d) 463. Appellant's method differs radically from Bligh. In fact, in the light of appellant's successful disclosure it may be said that Bligh has taught the art what not to do instead. of what to do. Under appellant's method his abrasive material is gently rubbed over a hairy surface "under a pressure to effect the breaking down of the hair structure without marring the skin." It is apparent that should the Bligh abrasive roller be held in contact. with the skin and rotated at a high rate of speed the skin would be blistered and marred, if not destroyed. Applied to tenderer skin on parts of the body other than the face, the effect would be more severe. We are clearly of the view that the Bligh patent, even when combined with the Crossley patent, does not anticipate appellant's disclosure. Decree reversed. [U. S. Court of Appeals for the District of Columbia] MYERS v. COE, COMMISSIONER OF PATENTS No. 6,521. Decided March 30, 1936 467 O. G. 4; 83 F. (2d) 708 1. PATENTABILITY—METHOD OF CONTROLLING MOTOR CAR DRIVING. Certain claims for a method of assisting in the control of motor ear driving, involving detachment of portions of driver's permit or license plate, Held unpatentable as not defining a "mode of treatment of certain materials to produce a given result", or an "act, or a series of acts, performed upon the subject matter to be transformed and reduced to a different state or thing." Cochrane v. Deener, 94 U. S. 780. 2. SAME DRIVER'S PERMIT OR LICENSE PLATE. Certain claims sufficiently broad to cover both a driver's permit and a license plate and other claims specific to a driver's permit, Held unpatentable as differing from theater tickets, checks, and the like only in the manner of use. 3. SAME LICENSE PLATE-REJECTION FOR LACK OF UTILITY, IMPROPER. Rejection of claims for a license plate having integrally attached thereto,. readily removable sections to constitute by their presence or official absence a record of driver's violations of traffic regulations, on ground the structure lacks utility and is frivolous because of possibility of mischievous removal of such sections and consequent embarrassment and humiliation of the driver, Held improper since it would be a simple matter for a mechanic to design a guard or lock and since the opprobrium attached to the driver of an automobile bearing symbols which denominate or stamp him as a speeder, reckless driver, etc., would strongly tend to curb such drivers. Affirmed in part and reversed in part. Mr. Joseph H. Milans and Mr. Needham C. Turnage for Myers. Mr. R. F. Whitehead for the Commissioner of Patents. Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS,. Associate Justices ROBB, A. J.: Appeal from a decree in the Supreme Court of the District dismissing appellant's bill, filed under section 4915, Revised Statutes, as amended (35 U. S. C. A. sec. 63), to authorize the issuance of a patent. The claimed invention relates to a system of designating traffic regulation violations by motorists. The specification discloses an automobile driver's permit and a license plate to be attached to the automobile. Attached to the license plate are tabs which may be detached therefrom. We here reproduce Figs. 1 and 2 of the application as illustrative of the license plate: It is unnecessary to illustrate the driver's permit. It is proposed to remove a tab from the license plate on violation of traffic law so that the plate will serve as a record of the driver's official standing in this respect. According to the specification, one of the leading ideas in connection with the invention is to provide a system whereby the driving record of automobile users will be carried about by the car in plain sight. In dealing with so difficult a question as safe motor-car driving, the present invention takes advantage of the very salutary effects produced by the pressure of public opinion. Claims 15 to 24, inclusive, are involved. [1] Claims 15 and 16 are for a "method of assisting in the control of motor-car driving." We agree with the Patent Office and the court below that these two claims do not define patentable subject matter They do not define a "mode of treatment of certain materials to produce a given result", nor do they define "an act, or a series of acts, performed upon the subject matter to be transformed and reduced to a different state or thing." Cochrane v. Deener, 94 U. S. 780, 11 O. G. 678. [2] Claims 17 and 18 are sufficiently broad to cover both the driver's permit and the license plate. There is nothing novel and, therefore, nothing patentable in the driver's permit. It differs from theatre tickets, checks, and the like only in the manner in which it is to be used. Claims 19 and 20 are specific to the driver's permit, and are unpatentable for the reasons already given. We now come to claims 21 to 24, inclusive. We reproduce claim 21 as illustrative of the group: A license plate for vehicles, comprising a hard weather-resisting plate adapted for attachment to the exterior of a motor vehicle, and said plate having a main section carrying official indicia of the government issuing the plate and index of the particular plate, such as a number, and said main section having integrally attached thereto readily removable sections to constitute by their presence or official absence a driving record. The Board of Appeals refused to allow these license plate claims on the ground that the structure covered "is frivolous." The Board directed attention to the fact that in the District of Columbia it has been the custom to provide blank spaces on the operator's permit for recording convictions of violations of traffic laws or regulations. The Board added: We do not believe it possible, however, that any state would consent to issue license plates of the type disclosed by appellant. The first thing that occurs to anyone upon inspecting this plate is that mischievous children or others would punch out the symbols and thereby cause the driver embarrassment and perhaps humiliation. We consider the idea absolutely impractical. [3] We are unable to agree with the reasoning and conclusions of the Patent Office as to these claims. Assuming that there might be instances of unauthorized removal of tabs, it would be a simple matter for a mechanic to design a guard or lock, as is done to prevent tampering with spare tires and the ignition. The appalling number of automobile accidents (30,000 deaths and over 1,000,000 injured annually) justifies a liberal attitude toward patent applications designed and reasonably calculated to reduce the number of accidents and discourage reckless driving. As recognized by the Board, the opprobrium attaching to the driver of an automobile bearing symbols which denominate or stamp him as a speeder, reckless driver, etc., would strongly tend to curb such drivers. According to an article in a current magazine,1 violators of minor traffic rules in Huntington, Indiana, receive, instead of a ticket, a warning from a policeman who pastes on the windshield a "scarlet letter" a sticker bearing notice of the offense. This sticker must be left on for 30 days. A violation by a motorist "wearing" a tag results in a trip to a police cell to await a court hearing. Los Angeles has a similar scheme, using a windshield sticker labeled, "Traffic Violator." We may notice that in the safety campaign being conducted in the District some of the local newspapers, presumably in an effort to make drivers conscious of their responsibility as well as of the value 1 Article from Public Management, reprinted in Readers Digest, February, 1936, p. 55. |