tem of lubrication disclosed and claimed in his application, we can not say that the Patent Office tribunals were manifestly wrong in holding that patentable novelty did not exist. Appellant's counsel very earnestly insists that, even conceding, for the purpose of argument, that every feature of appellant's structure described in his application may be found in the patents cited as references, they are not found in any single patent, and that appellant's combining the several features shown in such references has, by their cooperation with each other, produced a new and useful result which involved invention. Without question, if this be a fact, the decision of the Board of Appeals should be reversed. [1] While appellant's counsel stated upon oral argument that the device here in question has been put into successful operation, that wire is drawn by it at higher speeds than was possible in the prior art, that engineers and experts have pronounced appellant's machine to be the finest in the art, and that many of the machines have been manufactured and are in commercial use, we find no evidence in the record in support of these statements. The statute requires that we shall review decisions appealed from on the evidence produced before the Patent Office, and we can not consider any facts that are not found in the record, or of which we can not take judicial notice. It is true that the decision of the Examiner contains the following: It is conceded that applicant's machine as a whole is an up-to-date and fine machine, and one that will draw wire at high speeds, but is this due solely or in any part to the lubricating features, or due to the die construction and take up spool which is responsive to the tension of the wire being drawn, as claimed in assignee's Patent 1,599,393, or to the means for stopping the capstan in case the wire breaks, means for obtaining a uniform tension on the wire or other combination of elements as claimed in assignee's Patent #1,608,248, or to the controlling of the supply of lubricant in regard to the wire being drawn and other combination of elements as claimed, especially claims 7 and 8, in assignee's Patent #1,608,247 or to the specific construction of the die which enables wire to be drawn at higher speeds than has heretofore been possible as disclosed and claimed in assignee's Patent #1,438,940 or to other specific features of applicant's machine taken in its entirety. The Examiner concludes his decision with the following statement: In view of the other improvements over the old art the disclosures of the references at hand and their applicability it is not considered that the structure of the issue caused the assignee's machine to be the finest in the art nor is it considered that the same plays such an important part in the achievements accomplished by the assignee company, nor is it considered that such change involved invention. Even if this could be regarded as a finding of the Examiner based upon evidence, produced but not appearing in the record, that appellant's machine is a great improvement over the prior art, it should be observed that the Examiner was speaking of a machine. embodying, presumably, the features in issue and also other features patented to appellant's assignee. There is nothing in the record, either by way of evidence or findings of the patent tribunals, that any new and useful results of the machine referred to was attributable to the features covered by the claims in issue, but the findings are to the contrary. Lastly, it is claimed by appellant that the decision of the Examiner shows that he was in doubt as to the patentability of appel lant's claims on the lubrication of the die, and that, under the wellestablished rule, doubt as to the patentability of appellant's claims should be resolved in his favor. [2] We find no such doubt expressed in the decisions of the Patent Office. The question is raised by the Examiner as to whether the success of appellant's machine is due to the controlling of the supply of lubricant, or to other features of the machine for which appellant's assignee holds patents. That is not an expression of doubt, but a statement as to lack of evidence and a reason why patentability could not be found. Failure upon the part of appellant to produce evidence of patentability can not create a doubt as to patentability. The decision of the Board of Appeals of the Patent Office is affirmed. Affirmed. [U. S. Court of Customs and Patent Appeals] IN RE SCHIERHOLTZ No. 2,562. Decided December 1, 1930 402 O. G. 523; 45 F. (2d) 283 1. DESIGN-PATENTABILITY-INVENTION MUST BE PRESENT. "For a design to be patentable it is not enough that it be new, original, and ornamental, but it must also be the result of the exercise of the inventive faculty." 2. SAME-SAME-CLOCK CASE. A design for a clock case Held unpatentable since it discloses no inventive difference from the prior art. APPEAL from the Patent Office. Affirmed. Mr. Andrew H. Neureuther for Schierholtz. Mr. T. A. Hostetler for the Commissioner of Patents. LENROOT, J.: This is an appeal from the decision of the Board of Appeals of the Patent Office affirming the decision of the Examiner in rejecting the claim for a design for a clock case. The claim reads as follows: The ornamental design for a clock case as shown. The claim was rejected for lack of design invention. The references cited are: McGraw, Design 37,587, October 24, 1905; Sears, Roebuck & Co., 1925, page 432, item 5V8568; Sears, Roebuck & Co., 1920, page 729, item 5D8513. In the Examiner's statement in the record is found the following: It is believed that the references closely anticipate applicant's design, which appears to consist of nothing more than a conventional type of alarm clock mounted on a conventionalized base. The design contains no surface ornamentation, therefore, contour alone can be considered when compared with the references. The McGraw design and both of the catalogue references show clocks of the drum-effect type. The McGraw design and the last of the cata log references also show mounting bases very similar to that of the present design, the differences such as the substituting of an extra strip of molding for the ball-shaped feet of the McGraw design being merely details and not of a substantial nature that would amount to invention. Furthermore, both catalog references show dials almost identical to the one shown in the present case. We have carefully examined appellant's design and the designs shown in the references, and we agree with the tribunals of the Patent Office that no exercise of the inventive faculty was required to modify the designs there shown to produce the design claimed by appellant. [1] For a design to be patentable it is not enough that it be new, original, and ornamental, but it must also be the result of the exercise of the inventive faculty. In re Walter, 17 C. C. P. A. (Patents) 982, 39 F. (2d) 724, 396 O. G. 706. [2] In the case at bar the design is so nearly like that of the reference Sears, Roebuck & Co., catalog 1920, page 729, item 5D8513 as to preclude holding that appellant's design constitutes invention. There is found in the record an affidavit of one Wm. H. Darlington, disclosing commercial success of appellant's design, and appellant urges that this is evidence of patentability. The rule is well established that commercial success is persuasive of invention in doubtful cases, but apparently the tribunals of the Patent Office do not consider this to be a doubtful case, nor do we. The decision of the Board of Appeals is affirmed. Affirmed. [U. S. Court of Customs and Patent Appeals] IN RE WISWALL No. 2,326. Decided December 1, 1930 402 O. G. 705; 44 F. (2d) 424 PATENTABILITY-MANIFOLDING PAD. Claims for a manifolding pad designed to be used in the form of a roll rather than in the form of a flat pack Held unpatentable as lacking invention over the prior art. APPEAL from the Patent Office. Affirmed. Messrs. Duell, Dunn & Anderson and Mr. Holland Duell and Mr. James W. Anderson for Wiswall. Mr. T. A. Hostetler and Mr. Howard S. Miller for the Commissioner of Patents. BLAND, J.: From a decision of the Board of Appeals, affirming that of the Examiner in refusing to allow appellant's claims 4, 5, and 6, of which claim 5 may be taken as illustrative, appeal has been taken to this court. Claim 5 reads as follows: 5. A manifolding pad including, in combination, a plurality of superposed record strips, each having a series of recording areas therealong whereby the corresponding recording areas may be arranged in superposed registry with each other for manifold inscription, each of said superposed strips having registercontrolling apertures spaced in a longitudinal series therealong, each of said controlling apertures bearing a definite longitudinal relative relation with reference to an adjacent recording area, said superposed strips being bound together in contact with each other into a roll to form the manifolding pad and the register-controlling apertures of the respective superposed strips being longitudinally disaligned from each other in the pad roll and retained in such position by mutual engagement of the strips in the roll so that the corresponding apertures of the superposed strips may be prevented from becoming excessively longitudinally disaligned when leaving the pad to enter a register-controlling mechanism. The references are Remson et al., 505,958, October 3, 1893; Breakspear et al., 543,330, July 23, 1895; Shirek et al., 674,566, May 21, 1901; Roberts, 1,424,946, August 8, 1922; Wiswall 1,534,478 April 21, 1925; Temple, German, 163,782, October 30, 1905. Appellant's disclosure consists of a manifolding pack or pad, including a plurality of superposed record strips of paper which are divided into a series of blank forms, each of which is provided with one or more perforations, which perforations are adapted to function during the feeding of the strips through the machine. The superposed strips are rolled together in a single roll. Due to the increased circumference of the roll of the outermost of the strips with respect to the circumference of the underlying strips, ordinarily when the strips would be torn off, the top strip would be torn off in a different position relative to the other strips. Appellant's device contains two feed rolls, one of which has an edge sufficiently narrow to enter the perforations, thereby causing that sheet to stop rolling, thus permitting the other sheets to be moved up to where the perforations are brought into alignment, and thus bringing about an alignment of the printed forms and any carbon paper that might be used in connection therewith. It will not be necessary to discuss all the references. They disclose in some instances rolls of paper and flat pads of paper which are unrolled or drawn out for use, as salesbooks, etc. The Wiswall patent, 1,534,478, shows a manifolding book for the same machine as is used at bar with the same superposed record strips with formregistering apertures contained therein in substantially the same relative position on the strips, and intended to perform the same purpose as those at bar. Its use is confined to the use of zigzag pads, which are pads made of the strips of paper, folded in zigzag fashion. Appellant contends that it is desirable to use the paper in the form of a roll rather than in the form of a zigzag pad; that his device permits the use of same without having the ends of the strips uneven at the point where they are torn off. It is contended by applicant that it has required inventive genius to thus provide strips which can be used in the form of rolls rather than in the form of flat packs. The Board of Appeals held that the claims distinguish from Wiswall only by defining the package as being in the form of a roll, and further said: As we view the case, it did not involve invention to roll the superposed strips disclosed in Wiswall into a single roll, in view of the disclosures in the other cited patents. The patent to Shirek et al. well illustrates the equivalency of the zigzag and the rolled types of packages, shown respectively in Figures 2 and 3 of the patent. We do not think appellant's disclosure shows any invention not already disclosed in the references, and agree with the conclusion reached by the Board of Appeals, and its decision is affirmed. Affirmed. [U. S. Court of Customs and Patent Appeals] IN RE NELSON No. 2,548. Decided December 1, 1930 402 O. G. 705; 44 F. (2d) 872 PATENTABILITY-DISCLOSURE. Certain claims for a so-called liquid-level indicating device Held unpatentable as finding no basis in the application as filed. APPEAL from the Patent Office. Affirmed. Messrs. Kwis, Hudson & Kent and Mr. Watts T. Estabrook for Nelson. Mr. T. A. Hostetler and Mr. Howard S. Miller for the Commissioner of Patents. BLAND, J.: This is an ex parte appeal from the decision of the Board of Appeals of the United States Patent Office, rejecting certain claims of an application for a patent for a so-called liquid-level indicating device, such as is used to indicate the level of gasoline in automobiles. There are but two appealed claims, which follow: 2. A device for indicating the depth or quantity of liquid in a container comprising an elongated tube open at one end to the liquid at the full depth to be measured, a second elongated tube located closely adjacent and parallel to the first tube and terminating at the end corresponding to the liquid end of the first tube, in a U-shaped portion, a liquid seal in said U-shaped portion being subjected to a pressure equal to that existing in the container above the level of the liquid, and an indicating device connected to the remaining adjacent ends of the two tubes and having indicating means responsive to the pressure in said tubes and adapted to register the difference between said pressures. 3. A device for indicating the depth or quantity of liquid in a container comprising a tube open at one end to the liquid at the full depth to be measured, an indicating device with which the other end of said tube is connected, said device having indicating means responsive to two actuating pressures and adapted to register the difference between said pressures, a medium in said tube for transmitting to the indicating device as one of these actuating pressures, the pressure existing in the tube and due in part to the hydrostatic head of liquid in the container, in part to the pressure existing in the container above the liquid, and in part to changes in temperature of the transmitting medium, and means for producing and communicating to the indicating device as its second actuating pressure one equal to the pressure in the container above the liquid modified to correspond to the change imposed on the first-named actuating pressure as a result of changes in temperature of its transmitting medium. Claim 2 was rejected on the ground that the application as filed does not disclose the subject matter of that part of the claim reading: an indicating device connected to the remaining adjacent ends of the two tubes and having indicating means responsive to the pressure in said tubes and adapted to register the difference between said pressures. Claim 3 was rejected on the ground that the applicant does not disclose an indicating device with which the other end of said tube is connected, said device having indicating means responsive to two actuating pressures and adapted to register the difference between said pressures. As a further ground of rejection it was stated that the quoted language is misleading as applied to appellant's device. |