In re Barber, Patent Appeal No. 3569.

• Decision Date: 27 January 1936
• Docket Number: Patent Appeal No. 3569.
• Citation: 28 USPQ 187,81 F.2d 231
• Parties: In re BARBER.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

28 USPQ 187, 81 F.2d 231 (1936)

In re BARBER.

Patent Appeal No. 3569.

Court of Customs and Patent Appeals.

January 27, 1936.

Frederick Griswold, Jr., of New York City, for appellant.

R. F. Whitehead, of Washington, D. C. (Howard S. Miller, of Washington, D. C., of counsel), for Commissioner of Patents.

Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.

LENROOT, Associate Judge.

This is an appeal from a decision of the Board of Appeals of the United States Patent Office, affirming a decision of the Examiner, denying to appellant a design patent upon his application filed November 28, 1931. Said application contains a single claim, reading as follows: "The ornamental design for a combined flashlight cap and hanger ring as shown and described."

The Examiner rejected appellant's application upon two grounds, viz., nonpatentability over the prior art, in connection with which ground of rejection a number of references were cited by the Examiner, and also upon the ground that appellant was estopped by his mechanical patents from receiving the design patent applied for. Upon appeal, the Board of Appeals expressly reversed the Examiner upon the ground of rejection because of nonpatentability over the prior art, but affirmed his rejection upon the ground of estoppel. Accordingly, we are here concerned only with the issue of estoppel thus presented. Of the patents relied upon by the Examiner in support of the rejection upon the ground of estoppel, only one was discussed by the board, this being appellant's patent No. 1,894.147, issued January 10, 1933, upon an application filed December 20, 1928. The Examiner relied also upon another mechanical patent to appellant, No. 1,863,151, issued June 14, 1932, upon an application filed March 20, 1929; this patent was not mentioned in the decision of the Board of Appeals, other than to be included in the list of patents cited by the Examiner. It will be observed that the instant application was copending with those applications which resulted in the issue of the above-mentioned patents.

The instant application contains drawings illustrating the design sought to be patented. Figure 2 of the drawings shows a form of screw-on cap for the base of a flash-light. There is a depressed groove, substantially rectangular in shape, extending diametrically across said cap, the groove being formed in such manner that it projects inwardly toward the interior of the flash-light cylinder when the cap is in place. As a result of this rectangular groove, two segmental surfaces remain in the original plane of the cap, one on each side of said groove. These segmental portions provide surfaces upon which the flash-light can be stood upright when the so-called hanger ring, later referred to, is in closed position. In said figure 2 is also shown a hanger ring, evidently formed of wire or similar material. This ring is in the shape of a "U" and has its ends turned outwardly at right angles to the longer sides of the ring, which they terminate. These outwardly projecting ends are shown in said drawing to be inserted in apertures through the walls of the groove in the cap, near one end of said groove. These apertures serve as bearings for said projections on the ring and permit the pivoting of said ring therein, so that it may be opened or drawn out from its recess in the...