In re Eppinger, Patent Appeal No. 3871.

• Decision Date: 07 February 1938
• Docket Number: Patent Appeal No. 3871.
• Citation: 94 F.2d 401
• Parties: In re EPPINGER.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

94 F.2d 401 (1938)

In re EPPINGER.

Patent Appeal No. 3871.

Court of Customs and Patent Appeals.

February 7, 1938.

Myron J. Dikeman, of Detroit, Mich., for appellant.

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

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

BLAND, Associate Judge.

The Examiner of the design division of the United States Patent Office finally rejected all the claims, two in number, of appellant's application for a design patent for an ornamental design for a trolling spoon used in fishing. Appellant's specification originally consisted of what he denominated as four claims, three of which were prepared much on the plan of a claim covering a mechanical invention. After considerable Patent Office amendment and consideration, the Examiner finally rejected claims 2 and 4. He had ruled that all claims but claim 4 be canceled. This appellant failed to do.

Claims 2 and 4 follow:

"2. An ornamental color decorative design for the surface of a trolling spoon, comprising a semi-S-shaped curved white stripe line positioned lengthwise of the spoon surface and extended nearly the full length thereof, combined with red curved stripe lines placed adjacent thereto on either side thereof covering the remaining spoon surface, and the entire striped surface imprinted with a hexagonal line section net design substantially as shown.

"4. The ornamental design for a trolling spoon, as shown."

The Examiner ruled that only one claim was permissible, and that it should be in substantially the following form:

"I claim: The ornamental design for a trolling spoon, as shown."

The Board stated that since both claims 2 and 4 were finally rejected by the Examiner, it would consider both claims.

The references relied upon by the Examiner are as follows: Simmons Hardware Catalogue D copyrighted 1930, page 1802, Item No. D-2 in particular; Dills, 1,323,458, December 2, 1919; Dills, 1,391,670, September 27, 1921.

The patent to Dills, 1,323,458, is for an artificial bait or lure. It is of the usual minnow-shaped, wooden lure type, coated in green paint so as to simulate a covering of network.

The patent to Dills, 1,391,670, relates to a process of fish bait manufacture and shows the manner of applying the network effect to a wooden fishing plug.

The Simmons Hardware Catalogue representation of a metal fish lure shows, as the Examiner has stated, the identical form of wavy striped trolling spoon as is shown in the drawing of the instant application, except that it is not covered or coated so as to have the network effect. The Board stated:

"We shall consider both claims since both were finally rejected. Applicant states that claim 4 should be amended to take its original form in which case it is identical in effect with claim 2.

"The catalog disclosure shows the identical design covered by claim 2 except that it is not covered with a net design which per se is old as shown in the Dills patents in combination with other color designs. We agree with the examiner that there is no invention in combining the two designs. This is clearly set forth by the...