212 F.2d 606 (Fed. Cir. 1954), 6015, In re Application of Campbell

Docket Nº:Patent Appeal 6015.
Citation:212 F.2d 606, 101 U.S.P.Q. 406
Party Name:Application of CAMPBELL.
Case Date:April 09, 1954
Court:United States Court of Customs and Patent Appeals
 
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Page 606

212 F.2d 606 (Fed. Cir. 1954)

101 U.S.P.Q. 406

Application of CAMPBELL.

Patent Appeal No. 6015.

United States Court of Customs and Patent Appeals.

April 9, 1954

Rehearing Denied May 24, 1954.

Page 607

E. L. Reynolds, Washington, D.C. (S. Wm. Cochran, Washington, D.C., of counsel), for Commissioner of Patents.

Before O'CONNELL, JOHNSON, WORLEY, COLE and JACKSON, Judges.

JOHNSON, Judge.

This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming the action of the Primary Examiner in finally rejecting the single claim in appellant's application, Serial No. D-- 146,644, for a design patent on 'Rotative Winged Aircraft.' The claim was rejected for lack of invention over the prior art.

The appealed claim reads as follows:

'The ornamental design for rotative winged aircraft substantially as shown.'

The references relied on are:

Lewis Des. 144,401 April 9, 1946; 'American Helicopter,' page 41 December 1945.

Appellant's application was filed May 28, 1948, and discloses a helicopter having tandem three-blade rotors, the blades of which overlap. The fuselage is generally tear-shaped in both side and top view, being slightly non-symmetrical in the side view, with a non-symmetrical blunt nose which bulges outwardly in the lower half. The aft portion of the fuselage, in side view, bends upwardly into a large rear pylon, shaped similar to a conventional vertical stabilizer, which supports the rear rotor above the forward rotor. In top view the fuselage has a blunt nose that converges to a relatively sharp tail, with a portion of the sides substantially parallel for approximately two-thirds of their length. Three landing wheels are provided, two forward wheels which extend downwardly and outwardly at an angle from the fuselage, and a tail wheel directly under the aft end of the fuselage. A small forward pylon is provided for the front rotor, with its top positioned well below the top of the rear pylon. Both pylons are egg-shaped in cross-section, with the smaller end positioned in a rearward direction. Windows are provided in the nose, above the protruding portion.

The Lewis patent discloses a design for a helicopter, provided with three two-blade rotors, two of said rotors positioned along the forward part of the fuselage on arms projecting to either side thereof, and one disposed in the aft portion, atop a pylon which is shaped like a conventional vertical stabilizer. The fuselage is generally tear-shaped, in both top and side view, with its nost portion less blunt than appellant's design, and the sides being bowed outward in the center, converging to a relatively sharp tail. Three landing wheels are provided, two at the forward portion of the fuselage, mounted on short, streamlined arms extending on either side, and a tail wheel directly under the aft portion of the fuselage. The forward rotor supports are generally tear-shaped, with the sharp portion positioned in a rearward direction.

The 'American Helicopter' reference discloses a helicopter having tandem, three-blade rotors, the blades of which overlap. The views shown are a close-up, phantom, perspective view and a background view of a helicopter in flight. The fuselage appears to be generally tear-shaped in both top and s ide views, with the center portion bowed outwardly. The blunt nose appears symmetrical and is almost completely enclosed by windows. The rearward rotor is mounted

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on a pylon raised above the pylon which mounts the forward rotor so that the blades of the rear rotor pass well above those of the forward rotor. The rear pylon is generally triangular shaped with the fuselage coming to a relatively sharp point to the rear thereof, to provide an exhaust for a jet engine. The landing wheels extending downwardly and outwardly from the fuselage through opening therein provided with hinged covers, and a pair of tail wheels directly under the aft portion of the fuselage, which can be retracted within the fuselage and enclosed by a hinged cover. The pylons in this reference are of substantially the same thickness in cross section.

The examiner rejected appellant's design as being unpatentable over either of the above references. The Board of Appeals affirmed the examiner's rejection on the prior art, but apparently combined the rear pylon of the Lewis helicopter with the basic design disclosed by the 'American Helicopter' reference. In its decision the Board stated, in part as follows:

'The aircraft shown in the 'American Helicopter' publication is quite similar in appearance to appellant's design. * * *. The forward rotor of the reference device is mounted on a support that extends somewhat higher above the top of the fuselage than appellant's turret-like front rotor support and the rear rotor is mounted on a generally triangular pylon, whereas appellant's rear rotor is mounted on a pylon that resembles a conventional vertical stabilizer. The Lewis patent, however, shows a three rotor aircraft in which the rear rotor is shown in Fig. 1 to be mounted at a higher level than the forward rotors on a vertical projection which resembles quite closely the appearance of appellant's rear rotor support.'

Appellant contends that there are many differences between the references and his design and that these differences make the overall...

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