Application of Russell
| Decision Date | 30 November 1956 |
| Docket Number | Patent Appeals No. 6227. |
| Citation | 44 CCPA 716,239 F.2d 387 |
| Parties | Matter of the Application of Linus E. RUSSELL. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Tom Walker, Dayton, Ohio, and Vernon A. Dorsey, Washington, D. C., for appellant.
Clarence W. Moore, Washington, D. C. (H. S. Miller, Washington, D. C., of counsel), for the Commissioner of Patents.
Before JOHNSON, Chief Judge, and O'CONNELL, WORLEY, RICH, and JACKSON (retired), Judges.
This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming the rejection by the Primary Examiner of the single claim of appellant's application for a patent on a design for a pump, on the ground of lack of invention over appellant's prior patent, Des. 170,387. The appealed claim is as follows:
"The ornamental design for a pump substantially as shown and described."
The references relied on are:
North 385,319 June 26, 1888
Tucker D-107,465 December 14, 1937
Peters et al. 2,557,139 June 19, 1951
Russell D-170,387 September 8, 1953
Appellant's application discloses a pump comprising a cylindrical body having generally circular and closure plates, each of which is provided, at spaced points around its circumference, with four projecting lugs. The corresponding lugs in the two end plates are joined by axial tie rods which lie parallel to the cylinder. The lower end plate is provided with two projections on which the feet of the individual using the pump may be placed to hold it in position. The upper end plate has two couplings to which hoses may be connected, and the lower plate has an upwardly extending Y-shaped coupling member to which hoses may also be connected. The pump is provided with the conventional central operating rod.
The North patent shows a pump provided with four axial tie rods, while the Tucker patent shows a cylindrical gear case flusher provided with three such rods.
The Peters patent shows a pump of the same general type as both appellant's application and patent, the pump being provided at its lower end with foot-receiving projections.
The Russell patent, No. D-170,387, granted to appellant September 8, 1953, on an application filed on the same day as the instant application, shows a pump structure generally similar to that of the appealed application, but having three axial tie rods instead of four, and a single hose coupling, rather than two, at each end. Additionally, the hose connection at the lower end of the pump extends downwardly, whereas the corresponding coupling in the appealed application extends upwardly; nor does the patent show projections for receiving the feet of the operator.
The appeal raises two distinct issues; namely, whether appellant's patent can properly be used as a reference against the appealed application; and, if it can be so used, whether the application discloses an invention patentably distinct from that disclosed by the patent.
It is well settled that, regardless of filing dates, two patents cannot properly be granted to the same inventor on the basis of a single inventive concept. In re Jennings, 167 F.2d 1014, 35 C.C.P.A., Patents, 1163, and cases there cited. That principle is equally applicable in design cases. In re Ferguson, 208 F.2d 366, 41 C.C.P.A., Patents, 751. In determining whether more than one inventive concept is present, it is proper to consider prior art. In re Barge, 96 F.2d 314, 25 C.C.P.A., Patents, 1058. It is not necessary that the claims of an application and patent of the same inventor should cross-read in order to justify the use of the patent as a reference against the application. In re Ward, 236 F.2d 428, 43 C.C.P.A., Patents, 1007, and cases there cited.
Appellant alludes to Title 35, Section 121 of the United States Code, which provides that where the Commissioner of Patents has required an application to be restricted to one of two or more independent and distinct inventions, and a divisional application is...
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Application of Rubinfield, Patent Appeal No. 6397.
...claimed in a patent granted to the same inventor, even on a copending application. In re Bigelow, 194 F.2d 550, 39 CCPA 835; In re Russell, 239 F.2d 387, 44 CCPA 716, and cases there cited. It seems evident, therefore, that the inventive concept of a design is not limited to the exact artic......
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Southern Implement Mfg. Co. v. McLemore, 21458.
...must exist. And, of course, in that process, it is proper to consider what is disclosed by the prior art. Application of Russell, 1956, 239 F.2d 387, 388, 44 C.C.P.A. 716; Application of Ockert, 1957, 245 F.2d 467, 469, 44 C.C.P.A. 1024; S. H. Kress & Co. v. Aghnides, 4 Cir., 1957, 246 F.2d......
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Adidas Fabrique v. Andmore Sportswear Corp.
...two designs are "merely obvious expedients" that do not make one design "patentably distinct" from the other. See Application of Russell, 239 F.2d 387, 389, 44 CCPA 716 (1956). Both design patents at issue here disclose "an ornamental design for a bathing suit." The patents' claims are dire......
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McLemore v. SOUTHERN IMPLEMENT MANUFACTURING CO.
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