Application of Hunter

• Decision Date: 01 June 1948
• Docket Number: Patent Appeals No. 5441.
• Citation: 167 F.2d 1006
• Parties: Application of HUNTER.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

167 F.2d 1006 (1948)

Application of HUNTER.

Patent Appeals No. 5441.

Court of Customs and Patent Appeals.

May 4, 1948.

Rehearing Denied June 1, 1948.

Watson, Bristol, Johnson & Leavenworth, of New York City (David A. Woodcock and Norman N. Schuttler, both of New York City, of counsel), for appellant.

W. W. Cochran, of Washington, D. C. (H. S. Miller, of Washington, D. C., of counsel), for Commissioner of Patents.

Before GARRETT, Presiding Judge, and HATFIELD and JACKSON, Associate Judges.

GARRETT, Presiding Judge.

Appellant here seeks review and reversal of the decision of the Board of Appeals of the United States Patent Office sustaining the rejection by the Primary Examiner of the seven claims, numbered 1 to 7 inclusive, of appellant's application for patent entitled "Composing Machine Elements and Method for Distinguishing Fonts."

More specifically appellant's alleged invention relates to an arrangement whereby the operator of a linotype or similar machine may distinguish by means of colors between the matrices, belonging in different fonts, by the use of which matrices type for printing is cast or molded line by line. The matrices are of metal — usually brass. One edge of each matrix is a "reading," or "reference," edge, visible to the operator of the machine when the matrices are in line, and the opposite edge is indented with a die for the formation of a letter or character. Upon the reading edge there is stamped a letter or other character corresponding to the die on the opposite edge. The fonts are usually kept in magazines within which the matrices for each letter or character are arranged in separated partitioned channels. The machine may have from two to eight magazines carrying matrices for different styles of type — plainfaced, italics, bold-faced, etc. — attached, and other magazines may be conveniently available for substitution by the operator.

The machine is equipped with a key board resembling that of a typewriter showing letters, figures, punctuation marks, etc. In operation the mechanic, or "type-setter", touches the key upon which the desired letter or character is depicted, and the matrix falls into place in a container called an assembler or assembly box. It is necessary to adjust the matrices for each line by proper spacing between the words so that the lines will be of uniform lengths and even at both ends adjacent the "rules" which separate the columns. It sometimes happens that an unusual character not carried in one of the regular magazines is desired and in such event the operator may insert it by hand.

From each line of matrices a solid line of type is cast with molten metal. If there be an error in the line, the entire line must be reset and recast in order to make the necessary correction.

It not infrequently happens that different styles of type are used in the same line. For example, one word in a line may be of script and all the other words of plain type. In such cases in distributing the matrices after the line of type has been cast errors sometimes occur and a matrix will be returned to the wrong font or the matrices may become mixed in other ways with which those skilled in the printing art are familiar.

It is desirable that the operator of a machine may be able readily to detect a matrix from a wrong font at the time the matrices are being set in line so that it may be corrected before the line of type is cast; also it is desirable that the matrices may readily be identified as to font as they are being redistributed to the magazines. Appellant teaches the doing of this by applying different colors on the reading, or reference, edges of the matrices belonging to the different fonts. The claims do not designate any particular color for any particular style of type, but the specification gives illustrations, such, for example, as using light orange for italics, light green for pica, etc. It is noted that the specification states: "The term `color' is used herein to include white, black and grey as well as what are more strictly colors."

All of the appealed claims are product claims, and No. 1 is representative. It reads as follows: "1. In a composing machine having a plurality of magazines each containing a different font of elements having reference faces adapted to be exposed when a line of said elements is composed, the combination of one font of elements having a uniform color upon the reference face of its said elements, with a second font of elements having a different uniform color upon the reference face of its said elements."

So far as we can discern, there are no limitations in any of the other claims which require separate consideration. In other words, all seven claims stand or fall together.

The following patents were cited as references by the examiner and treated as such by the board: Dodge, 786,199, Mar. 28, 1905; Clarke, 965,155, July 26, 1910; Hill, 1,466,437, Aug. 28, 1923; Shinohara, 1,657,437, Jan. 24, 1928; Barker, 1,929,383, Oct. 3, 1933.

In his rejection of October 21, 1944, which was declared to be final, the examiner based his rejection "on the patent to Hill in view of the patents to Clarke and Shinohara." Thereafter appellant filed certain affidavits and exhibits relating to utility and an argumentative letter in which the patent to Dodge was referred to. The examiner responded thereto in an "advisory action" in which, after discussing the Dodge patent and citing the Barker patent, he asserted: "The proposed argument, affidavits and exhibits are not considered to place the application in condition for allowance and thus are not properly responsive to the final rejection of Oct. 21, 1944 and have not been entered."

Subsequently counsel for appellant requested the entry of the documents so alluded to, and while there is no specific statement that they were entered, we assume that they were because "affidavits and exhibits" are referred to as having been presented in the statement of the examiner following...