IN RE RUTLEDGE.
| Decision Date | 25 March 1931 |
| Docket Number | Patent Appeal No. 2630. |
| Citation | 47 F.2d 797,18 CCPA 1081 |
| Parties | In re RUTLEDGE |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Paul, Paul & Moore, of Washington, D. C. (J. T. Newton, of Washington, D. C., of counsel), for appellant.
T. A. Hostetler, of Washington, D. C., for Commissioner of Patents.
Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
Appellant applied for a patent for a design for stockings. The application was denied by the Examiner upon three grounds: First, that the design, or shape, of the stocking was believed to have a mechanical function as its chief purpose, viz., to make the ankle seem slender; second, it was thought that the stockings when on display on the counter are folded in such a manner as that the ordinary observer would not see the full design, and hence there would be lacking "the effect upon the eye," an essential of patentability under design patent law; and, third, upon prior art as shown in patents to Lawson, 1,467,549, Bosworth, 1,476,042, and Landenberger, 1,111,658.
The Board of Appeals disagreed with the Examiner as to the existence or applicability of the two first grounds, but affirmed his rejection upon the references cited, and applicant has appealed to this court.
The design is thus described in the opinion of the Board of Appeals:
Lawson shows a stripe, or portion, extending from near the top of the heel part of a stocking upwardly in an inclined line to a given point and thence vertically to the top of the stocking, but states that it may be stopped at a designated point corresponding closely to the point where appellant fixes the apex of his pointed design. The general formation of appellant's "heel and high splice" is substantially the same as that of the Lawson patent, excepting the pointed effect. Bosworth shows a pointed effect differing somewhat from that of appellant; Landenberger in one or more of his figures shows an even nearer approach to appellant's pointed effect.
The references are all for mechanical or product patents, but it is well settled, we think, that a patent upon an article may constitute anticipation of a design. Bradley v. Eccles...
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...F.2d 895, 896 (3 Cir. 1934); Boyle v. Rousso, 16 F.2d 666, 668 (8 Cir. 1926). In re Schraubstadter, 26 App.D.C. 331 (1905); In re Rutledge, 47 F.2d 797 (C.C.P.A.1931). See also Gorham Mfg. Co. v. White, 81 U.S. 511, 527-528, 20 L.Ed. 731 (1871). 20 See Jacob Elishewitz & Sons Co., Inc. v. B......
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