In re Hadden

• Decision Date: 26 May 1927
• Docket Number: No. 1952.,1952.
• Citation: 20 F.2d 275
• Parties: In re HADDEN.
• Court: U.S. Court of Appeals — District of Columbia Circuit

20 F.2d 275 (1927)

In re HADDEN.

No. 1952.

Court of Appeals of District of Columbia.

Submitted May 10, 1927.

Decided May 26, 1927.

J. M. Jester, of Washington, D. C., and R. W. Byerly, of New York City, for appellant.

T. A. Hostetler, of Washington, D. C., for Commissioner of Patents.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

ROBB, Associate Justice.

Appeal from a Patent Office decision refusing to allow applicant's claim covering a design for a grandstand, on the ground that, although it may be a manufacture, it is not an article of manufacture.

In his specification applicant thus characterizes his design: "The essential feature of the new design consists in the fact that the outer edge of each side of the grandstand is bowed outwardly from the lines of the side seats, as shown in Fig. 1, and is higher at the center, and decreases in height toward the ends, being substantially elliptical in said elevation, as shown in Fig. 2."

That grandstands as heretofore constructed are seldom pleasing to the eye is a conservative statement. Counsel for the applicant, in his brief, quotes from an article by applicant on "Modern Athletic Stadia," in which he speaks of this as follows: "It is in its elevation that this design shows its greatest novelty, and it is this feature which gives the structure its distinctive architectural appearance. The cutting off of the straight rising tiers of seats with their vertical curve or slope by the cylindrical outer wall causes a sky line which consists of a series of convolutions."

We are of the view that the construction of a grandstand in accordance with this design will produce an ornamental and pleasing structure. The Patent Office was doubtful on this point, the Commissioner saying: "In a structure of the size here involved, the average user would get little definite notion of any ornamental feature in the entire structure. * * * While seated in the grandstand, an observer could, possibly, obtain some idea of the curves of the opposite and lateral tiers of seats; but it is doubtful if he would be impressed with the view that there was anything ornamental, or beyond mere utility, in the construction exhibited by the curved tiers of seats.

Since the amendment of section 4929, R. S., on May 9, 1902 (32 Stat. 193 Comp. St. § 9475), eliminating the word "useful" from the statute, a design patent has had reference to appearance, and not utility. Rowe v. Blodgett (C. C.) 103 F. 873, affirmed in (C. C. A.) 112 F. 62. It may now properly apply to the article of manufacture as a whole, if the general effect is pleasing and ornamental. Mygatt v. Schaffer (C. C. A.) 218 F. 827; Foster & Bros. Co. v. Tilden-Thurber Co. (C. C. A.) 200 F. 54. The Lincoln Memorial in this city is a good example of such a design. In other words, it is the form of the structure as a whole to which we must look.

Article 1, § 8, of the Constitution, empowers Congress "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Section 4886, R. S. (section 9430, Comp. St.), provides that "any person who has invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvements thereof," etc., may obtain a patent therefor.

Section 4929, R. S., provides: "Any person who has invented any new, original, and ornamental design for an article of manufacture," etc., may obtain a patent therefor.

In Crier v. Innes, 170 F. 324, it was held by the Circuit Court of Appeals for the Second Circuit that a sarcophagus monument is an article of manufacture, within the meaning of section 4929, R. S., and a proper subject for a design patent.

In Riter-Conley Mfg. Co. v. Aiken (C. C. A.) 203 F. 699, it was...