Application of Garbo, Patent Appeal No. 6657.

• Decision Date: 21 February 1961
• Docket Number: Patent Appeal No. 6657.
• Citation: 287 F.2d 192,129 USPQ 72
• Parties: Application of Paul W. GARBO.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

129 USPQ 72, 287 F.2d 192 (1961)

Application of Paul W. GARBO.

Patent Appeal No. 6657.

United States Court of Customs and Patent Appeals.

February 21, 1961.

Paul W. Garbo, pro se, Martin T. Fisher, Washington, D. C., for appellant.

Clarence W. Moore, Washington, D. C. (S. Wm. Cochran, Washington, D. C., of counsel), for Commissioner of Patents.

Before WORLEY, Chief Judge, and RICH, MARTIN, and SMITH, Associate Judges, and Judge WILLIAM H. KIRK-PATRICK.¹

MARTIN, Judge.

This is an appeal from the decision of the Board of Appeals of the United States Patent Office sustaining the examiner's rejection of the single claim of appellant's application for a design patent.

The appealed claim is as follows:

"The ornamental design for a cinematic multiple-place trainer for automotive drivers as shown and described."

The reference relied on is:

"Your Car Magazine, April, 1954, page 43, `Behind The Wheel Training.\'"

The examiner described the claimed design as follows:

"The claimed design is for a driver training arrangement in a narrow enclosure such as a trailer. This arrangement consists of two rows of small simulated cars in a bumper to bumper fashion and having an aisle between them. Each car in a row is at a slightly higher level than the one in front and all the cars are slightly angled away from the walls of the enclosure facing the front where a cinematic screen is located. In the rear is a film projector mounted on a stand."

It is also noted that the specification recites permanent attachment of the projector, screen, and individual trainer units to the trainer body. The screen is wide enough to extend substantially across the space in front of the two rows of cars. The bottom edge of the screen is high enough so that the heads of average seated trainees will not obstruct the projected picture. Each row contains four cars.

The Your Car Magazine reference discloses a photograph of fourteen simulated car training units, of the same single seater type as those disclosed by appellant, arranged in a fan-shaped pattern in staggered relationship on the same level in a large room. Seated trainees face a screen on which is being projected a driving situation by a projector mounted on a stand behind the cars. Each car is spaced from other cars so that a person may move completely around a car.

The board rejected the claim on the ground that appellant has merely adopted the well-known arrangement of seats in theaters and halls in arranging the training cars of the reference in a narrow enclosure. It was the board's "firm conviction that the bumper-to-bumper arrangement is lacking in design invention because it has a functional and utilitarian aspect that is common and well known * * *." The other aspects of the design which differed from the arrangement shown in Your Car Magazine were also found by the board to be based on functional considerations known to the routine designer of theater and hall seating arrangements.

Appellant urges that the board has broken down his "closely knit design" feature by feature and has analyzed each feature individually for novelty. This, it is suggested, should not have been done because the design as a whole must be compared with something in existence. Moreover, urges appellant, it is immaterial that the subject of a design may embody function if the design is attractive, novel, and inventive.

The...