Application of Stevens
| Decision Date | 12 April 1949 |
| Docket Number | Patent Appeal No. 5550. |
| Citation | 81 USPQ 362,173 F.2d 1015 |
| Parties | Application of STEVENS. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
E. J. Balluff, of Detroit, Mich. (George Rex Frye, of Detroit, Mich., of counsel), for appellant.
W. W. Cochran, of Washington, D. C. (E. L. Reynolds, of Washington, D. C., of counsel), for the Commissioner of Patents.
Before GARRETT, Chief Judge, and HATFIELD, JACKSON, O'CONNELL, and JOHNSON, Judges.
This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming the decision of the Primary Examiner rejecting the single claim in appellant's application for a patent for a design for a rotary brush. The claim was rejected on the ground of lack of invention over the prior art and on the further ground that appellant's design is hidden from view in normal use so that its appearance is immaterial.
The appealed claim reads:
"The ornamental design for a rotary brush substantially as shown and described."
The reference relied on is:
White 2,287,922 June 30, 1942
Appellant's application discloses a rotary brush of the type used in vacuum cleaners. The brush consists of an elongated cylinder having two rows of brush tufts projecting from the cylindrical surface. each row of tufts extends in a generally spiral form from one end of the cylinder to the other, there being a gap in each row at the central portion of the cylinder. The brush tufts of one row are thicker than those of the other.
The patent to White discloses a vacuum cleaner brush comprising an elongated cylinder having two rows of brush tufts extending from end to end of the cylindrical surface. The rows are continuous and the tufts are of uniform size. The cylinder is somewhat longer in proportion to its diameter than appellant's cylinder and is provided with a pulley adjacent one end.
We are of opinion that appellant's design is not inventive over the disclosure in the patent to White. The exact proportioning of the cylinder, the size of the brush tufts, and the provision or omission of a driving pulley or of a gap in the row of tufts, are matters involving ordinary skill only. The over-all appearance of appellant's brush does not differ substantially from the brush disclosed in the patent to White. The presence of invention is as essential to the granting of a design patent as to the granting of a mechanical patent, and obvious changes in arrangement and proportioning are no more patentable in one case than in the other. See In re Faustmann, 155 F.2d 388, 33 C.C.P. A., Patents, 1065. We are of opinion that appellant's claim was properly rejected as unpatenable over the disclosure in the patent to White.
The appealed claim was further rejected on the ground that since the article to which appellant's design is applied is hidden in normal use, its appearance is immaterial and, if any invention is involved, it is obviously utilitarian in character. Although a...
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...obscure[d] are not proper subjects for design patents, since their appearance cannot be a mater of concern." In re Stevens, 36 C.C.P.A. 1017, 173 F.2d 1015, 1016 (C.C.P.A.1949) (as quoted in In re Webb, 916 F.2d 1553, 1557 (Fed.Cir.1990)). Citing cases such as Stevens, the Federal Circuit h......
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...during their lifetime, at no point was their appearance a matter of concern to the end-user. Id. at 11 (citing In re Stevens, 36 CCPA 1017, 1019–20, 173 F.2d 1015 (1949)). Lexmark claims that the district court improperly shifted the burden of proof onto Lexmark to show validity and imprope......
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