Application of Johnson
| Decision Date | 28 June 1949 |
| Docket Number | Patent Appeals No. 5595. |
| Citation | 175 F.2d 791 |
| Parties | Application of JOHNSON. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Woodling & Krost, Cleveland, Ohio (George V. Woodling and Bruce B. Krost, Cleveland, Ohio, of counsel), for appellant.
W. W. Cochran, Washington, D. C. (H. S. Miller, Washington, D. C., of counsel), for the Commissioner of Patents.
Before GARRETT, Chief Judge, and JACKSON, O'CONNELL, and JOHNSON, Associate Judges.
Appellant's application for a design patent for an ornamental design for a pair of pliers (the type known as gas burner and pipe pliers) was rejected by the examiner as lacking invention over the references. The Board of Appeals of the U. S. Patent Office affirmed that rejection relying on the following references:
Mihan, 272,573, Feb. 20, 1883
Smith, 1,290,846, Jan. 7, 1919
Seger, 2,070,217, Feb. 9, 1937
"Utica No. 1300" Gas and Burner Pliers, page 218, Hammacher Schlemmer Hardware Co., Catalog No. 500.
Appellant's pliers present the fundamental configuration of a long slim nose formed by the jaws, and long graceful curving handles, the ends of the handles turning out somewhat from the arc of the gripping portion. A predominating appearance of smoothness, sleekness, and streamline grace is secured by the virtual elimination of plane surfaces through the use of rounded edges and curved surfaces in their stead.
The Mihan reference is a mechanical patent covering gas burner and pipe pliers. The drawing of the patent illustrates pliers virtually of the same configuration as appellant's design. Mihan discloses a long nose formed by the pliers jaws, and long gracefully curving handles or grippers. The nose of the Mihan pliers has a rounded configuration, the side edges of the nose, however, being beveled at a 45° inclination.
"Utica No. 1300" pliers has an identical fundamental structure to appellant's design, the only difference between them being that "Utica No. 1300" has plane surfaces and angular corners whereas appellant's design incorporates curved surfaces and rounded corners and edges.
The Smith reference is a mechanical patent for a staple-extracting tool, and discloses handles shaped in somewhat the same manner as the handles of appellant's design.
Seger, cited by the examiner but not by the board, though mentioned in the board's decision, is a mechanical patent for a fence repair tool. The drawing illustrates the application of curved rather than plane exterior surfaces to the gripping part (the nose) of the tool.
The board held in effect that the use by appellant of curved surfaces for the edges of the long pliers nose in lieu of angular and plane surfaces as used by Mihan, and the difference in the shape of the handle ends represented departures in design within the scope of knowledge of a routine designer. The board held that the general appearance of the Mihan pliers so closely resembled that of the appellant as to preclude the use of the inventive faculty in forming the latter. The board also considered that Seger taught curving the gripping portion of the pliers, and that Smith disclosed handles of the type embodied in the design at bar. The examiner had held that no patentable ornamental distinction was present in appellant's design over the Mihan and Utica tools.
Appellant contends that Mihan's tool emphasizes flat planes and angles in that "The sides of the jaws, the pivot portion and the handles appear...
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...look like, though individuals react differently. It is bound to be an individual reaction. (Emphasis added). See also In re Johnson, 175 F.2d 791, 792, 36 C.C.P.A. 1175. On the other hand, the Second, Third, Sixth, Eighth, and District of Columbia Circuits have phrased their standard for de......
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