Application of Rousso

• Decision Date: 25 May 1955
• Docket Number: Patent Appeal No. 6115.
• Citation: 106 USPQ 99,222 F.2d 729
• Parties: In the Matter of the Application of Jacques ROUSSO.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

106 USPQ 99, 222 F.2d 729 (1955)

In the Matter of the Application of Jacques ROUSSO.

Patent Appeal No. 6115.

United States Court of Customs and Patent Appeals.

May 25, 1955.

Joshua R. H. Potts, Chicago, Ill. (Anthony J. Turchetti, Philadelphia, Pa., of counsel), for appellant.

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

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

GARRETT, Chief Judge.

This is an appeal from a decision of the Board of Appeals of the United States Patent Office, affirming the rejection by the Primary Examiner of appellant's application for design patent, serial No. 3,849, filed July 12, 1949, for a "Towel Cabinet."

The rejected claim is in the conventional design form, reading: "The ornamental design for a towel cabinet, as illustrated." Although there is only one illustration in the record before this court, there are several references to a "Figure 2." In the brief in behalf of the Commissioner of Patents, we are told —

"Although the record includes only a single drawing denoted Figure 1, the Examiner\'s Statement * * * refers to a Figure 2. Moreover, the Board decision * * * and the appellant\'s brief * * * describe certain braces on the rear of the cabinet and an interior shelf, which do not appear in Figure 1 as shown in the record. Inspection of the file reveals that an additional sheet of drawing bearing Figure 2, a perspective view of the cabinet, was prepared by the Patent Office at the applicant\'s request and with the approval of the examiner. It was mailed to the applicant\'s attorney June 27, 1952, for signature but Patent Office records do not show that it was ever returned. Thus, it was never entered officially in the case and could not be included in the appeal record."

Neither applicant nor the Commissioner has complained of the absence of Figure 2, however, and we will therefore consider only Figure 1. It does not appear that Figure 2 in fact presents matter which differentiates it from Figure 1 in any patentable sense.

Figure 1 shows a cabinet which, we learn from the briefs, is designed to hold clean, individual fabric towels for use in public washrooms. When in use, clean towels are threaded on a wire rod, and placed in the top half of the cabinet. A person wishing to dry his hands would draw a towel from the top of the cabinet, dry his hands, and then release the towel, which would follow the wire rod into a storage compartment in the lower half of the cabinet.

In appearance appellant's towel cabinet is a rectangular box, of the same general configuration as an orange crate standing on end. The top of the cabinet, through which the clean towels are drawn, is open. The lower 60% of the forward side of the cabinet is open, and the upper 40% (which adjoins the clean towels) is closed. A wire rod leads from inside the open top, down the outside of the short front panel, and into the open lower half of the forward side. The other sides of the cabinet which are visible are apparently fully paneled, though there is a suggestion in the briefs that Figure 2 had showed that the back of the cabinet was open. Certain other bars and rods appear in Figure 1, but they seem to be related to the mechanical features of the cabinet, and it is not urged that these features support design invention.

The following references were cited below: Hamner 2,077,753 Apr. 20, 1937; Forman 2,244,833 June 10, 1941. Both of the reference patents are mechanical patents for towel cabinets, as distinguished from patents for design, and are relied upon for their illustrations.

The Hamner patent shows a towel cabinet which also is of a rectangular box-like shape. It, too, shows a wire rod upon which fabric towels are threaded, with a shelf in the upper half of the box upon which clean towels are placed, with the lower half adapted to receive the dirty towels. The only significant structural difference between the Hamner cabinet, and that of appellant's, is that in the Hamner cabinet, the top of the cabinet is closed, and the clean towels are withdrawn from the open side, while in appellant's cabinet, the side adjoining the clean towels is closed, and the clean towels are withdrawn through the open top.

The Forman patent shows a towel cabinet which is also a vertically elongated box with a horizontal cross section. In one form of the Forman patent, three sides and the top and bottom of the box are closed. A towel "carrier unit" is adapted to be inserted into the open side of the box, and fastened in the upper half of the box. This carrier unit is designed to facilitate the loading of the cabinet with towels. There is a panel adjoining the clean towels, so that when the carrier is placed in the cabinet for use, the cabinet has a paneled appearance, from a few inches below the top of the cabinet, to the bottom of the towel carrier unit. Forman also shows the wire rod upon which the towels are threaded. The only significant difference between...