Application of Lurelle Guild

• Decision Date: 29 May 1953
• Docket Number: Patent Appeal No. 5967.
• Citation: Application of Lurelle Guild, 204 F.2d 700, 40 C.C.P.A. 996 (Cust. Ct. 1953)
• Parties: Application of LURELLE GUILD.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

204 F.2d 700 (1953)

Application of LURELLE GUILD.

Patent Appeal No. 5967.

United States Court of Customs and Patent Appeals.

April 15, 1953.

Rehearing Denied May 29, 1953.

Allen & Allen, Cincinnati, Ohio (Erastus S. Allen, Cincinnati, Ohio, of counsel), for appellant.

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

Before GARRETT, Chief Judge, and O'CONNELL, JOHNSON, WORLEY, and COLE, Judges.

COLE, Judge.

The subject matter involved in this appeal relates to a design patent application for a building roof.

In proceedings before the Primary Examiner of the United States Patent Office, the single claim of the application was rejected, three grounds therefor being assigned.The Board of Appeals affirmed the examiner's decision, reversal of the first ground of rejection, however, specifically being manifested.

The claim reads as follows:

"The ornamental design for a building roof substantially as shown and described."

With the consent of the Patent Office, the application drawing has been supplemented on appeal by more accurate reproductions of the design in question and while technically not a part of the record before us, said reproductions will be considered in arriving at the decision of the court.

A clear description of applicant's design is found in the opinion of the Primary Examiner, as follows:

"The subject matter of the instant application relates to a building roof made up of shingles of the type having granules on the surfaces thereof.Said granules are arranged in batches which vary in hue, chroma and value embedded in areas on the surface of the shingles with adjacent areas blended together so that when the shingles are laid on the roof an optical effect of deep shadows below the butts of the shingle units is produced simulating shingles of greater than actual thickness, the blending of adjacent areas of the granules of different hue, chroma and value arranged irregularly depthwise of the roof revealing a non-banding visual appearance laterally of the roof of gradually deepening color value throughout the entire exposed area of each shingle unit from butt to overlap and the blending of the granules of different hue and chroma in areas laterally of the roof arranged irregularly widthwise in each shingle unit to reveal a non-banding appearance depthwise of the roof, the pattern of distribution of granules of different hue, chroma and value being different in each shingle unit."

It is essential that the terms "hue,""chroma," and "value"(color value), used in the foregoing description, be understood.In this connection, the applicant has stated in his brief that every colored article, exclusive of black and white or intermediates there-between, has three qualities.Hue commonly means color, i. e., red, green, blue, yellow, or intermediates thereof.Chroma has particular reference to whether the hue is intense, weak, faded, etc.Color value is indicative of the degree of luminosity.

It appears to us that the applicant, by arranging areas of mineral granules on the shingles which vary in hue and chroma, but which gradually deepen in color value from butt to overlap, achieves the nonbanding shadow blend roof effect which is claimed to be the essence of the invention.More concretely, the overall concept amounts to this: Constantly change the areas of different hue and chroma laterally of the roof and, at the same time, maintain a constantly changing color value vertically of the roof panel.

In rejecting the application on appeal, the Board of Appeals placed reliance upon the following references: McKay 1,208,595 December 12, 1916;House and Gardenpage 50April, 1950.

The McKay reference is a product patent for prepared roofing while the latter publication is pertinent in connection with alleged copyright protection granted the present applicant covering the identical roof design claimed in the instant appeal.

Considering now the patent to McKay, the tribunals below predicated their rejection of the appealed claim on the ground that the subject matter thereof was not patentably distinct from that disclosed by the reference.That a product patent, such as the McKay reference, can, if pertinent, be cited as a disclosure to anticipate the design application on appeal is not disputed.

McKay's drawing shows a shingle darker at the lap end which gradually becomes lighter at the butt end.The applicant agrees that the following analysis of the McKay specification, as set forth by the board in its opinion, is correct:

"McKay states that he attains fictitious or illusory shadow-values by the graduated blending or merging of a lighter-colored color-layer into the darker mass of a plastic main layer and that by the coordination of the resultant illusory `deep-shadow\' areas and `shadow-blends\' with the physical elevation and depressions of the prepared roofing surface, he attains the optical illusion of depth of relief which greatly exceeds the physical depth of the material.McKay also states that the two layers may be so blended as to graduate the color of the color coating into the dark appearance of the deep-shadow area in the resultant `shadow-blend\' areas. * * *"

Concededly, McKay suggests a shadow blend giving an artificial appearance of thickness to the shingles.Persistently urging, however, that McKay's idea was completely inoperative to produce anything which resembles the appearance of that inventor's drawing, the applicant, to strengthen such a conclusion, has submitted the...