In re Griffith, Patent Appeal No. 3677

• Decision Date: 30 November 1936
• Docket Number: Patent Appeal No. 3677
• Citation: 86 F.2d 405
• Parties: In re GRIFFITH.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

86 F.2d 405 (1936)

In re GRIFFITH.

Patent Appeal No. 3677

Court of Customs and Patent Appeals.

November 30, 1936.

Arthur A. Olson and Thorley Von Holst, both of Chicago, Ill., 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.

GARRETT, Associate Judge.

The application here involved is for a design patent on "A Refrigerator Cabinet or the Like." It was rejected by an Examiner in the United States Patent Office whose decision, upon appeal, was affirmed by the Board of Appeals. Appellant thereupon took the instant appeal to this court.

As originally filed, the application was limited in its title to a design for "Compartment Shelving." Both title and text, however, were several times amended following different Patent Office actions, so that in its final form the title reads as has been stated, and the claim reads: "The ornamental design for a refrigerator cabinet or the like, substantially as shown and described."

It is conceded that the shelving in the compartment is the dominant feature of the design, there having been inserted into the final text of the application the following: "The dominant feature of my design is the shelving within the compartment, which shelving comprises intersecting strips or strands extending in nonparallel relation to the sides or edges to form openings of substantially diamond shape as shown. It will be understood that this dominant feature may be employed and embodied in any conventional type of refrigerator cabinet without departing from the spirit and scope of the invention and that it is likewise adapted for embodiment in stove and gas range ovens and the like."

Appellant, or his assignee, on June 5, 1934, secured a mechanical patent (No. 1,961,144) on compartment shelving "to be used for refrigerators, poultry houses, etc., where a perforate plane surface is desired." The application for such patent was filed October 14, 1933. The instant design application was filed February 12, 1934. So, the two applications of appellant were, for a time, copending.

In the Examiner's statement following the appeal to the board, he made reference to appellant's mechanical patent, and listed the following as prior art references: Page C-2584 (Fig. No. 304) Sweet's Architectural Catalog, 1926-1927 Edition, section C; (Des.) Ullin, 47,441, June 8, 1915, 67-3; (Des.) Ullin, 46,707, November 24, 1914, 67-3; (Des.) Bruton, 47,022, March 2, 1915, 67-3; Dickey, 1,833,935, December 1, 1931, 67-3 uxr; Clark, 1,259,210, March 12, 1918, 54-2A uxr; Clark, 767,798, August 16, 1904, 54-2A uxr; Collis, 1,189,919, July 4, 1916, 67-3 uxr.

The Board rendered two decisions, there having been a petition for rehearing. In its first decision all the references listed by the Examiner were set out, but of these specific reference was made only to the patents of Dickey and Clark. The decision made reference to appellant's mechanical patent, but did not specifically base rejection upon it, although there was no overruling of what the Examiner said concerning it. In the second decision the Dickey and Clark patents were again discussed, rejection again being based upon them, and the Board also then, for the first time, specifically held that the invention here claimed is not patentably different from the invention claimed in appellant's mechanical patent. Certain of appellant's reasons of appeal are directed to the point that appellant's mechanical patent may not be utilized as a reference against his design application under the facts appearing in the record.

As has been indicated, the dominant feature of appellant's design is the shelving composed of flattened, expanded metal strips, so crossed as to form diamond shaped openings as arranged in a refrigerator "or the Like," the refrigerator itself being of conventional type, such as that shown in the patent to Dickey.

The Board describes the shelving and its arrangement as follows: "The claim is directed to a design for a refrigerator cabinet or the like, substantially as shown and described and as shown, this comprises a conventional refrigerator having shelving therein formed of expanded metal which has been so formed or treated as to make the strands thereof relatively flat. It appears that upon so forming the expanded metal, applicant states that the strips or strands form diamond-shape openings or cavities between them and the strands appear relatively straight. Applicant so illustrates his expanded metal whether or not this would be true of such expanded metal in general."

It may be said that the patent to Dickey, which is directed to mechanical features, not only shows a conventional refrigerator body, but shows a conventional arrangement of the shelves therein, which arrangement differs little from that shown by appellant. The differences actually reside not in the location of the shelving, but in the fact that appellant's metal gratings are, in structure, flattened and are laid so as to form diamond-shaped openings, while Dickey's gratings are of round wire or rods and are laid in a manner which results in rectangular openings. The shelvings in both are constructed so that the...