Renstrom v. Solomon

• Decision Date: 26 February 1943
• Docket Number: No. 4657.,4657.
• Parties: RENSTROM v. SOLOMON.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

133 F.2d 942 (1942)

RENSTROM v. SOLOMON.

No. 4657.

Court of Customs and Patent Appeals.

December 1, 1942.

Rehearing Denied January 29, 1943.

Motion for Leave to File Second Petition for Rehearing Denied February 26, 1943.

Cushman, Darby & Cushman, of Washington, D. C. (William M. Cushman and Gorham F. Freer, both of Washington, D. C., of counsel), for appellant.

Charles M. Palmer, of Washington, D. C., for appellee.

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

GARRETT, Presiding Judge.

This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming that of the Examiner of Interferences awarding priority of invention to the party Solomon as to four counts involved in an interference declared between a patent issued to the party Renstrom, and an application of the party Solomon, the subject matter being broadly defined as hair curlers.

The patent to Renstrom, No. 2,118,737, bears date of May 24, 1938, the application, serial No. 184,459, therefor having been filed January 11, 1938. The application of Solomon, serial No. 177,666, was filed December 2, 1937. So, Renstrom is the junior party.

At some time during the prosecution of Solomon's application, apparently March 3, 1939, he amended it by copying four of the six claims of the Renstrom patent and requested an interference declaration. The interference was declared March 20, 1939.

Counts 1 and 2 (which are claims 1 and 3 of the patent) are typical. They read:

"1. A roller for coacting with an end of a hair curler to secure clamp means thereof in hair clamping position, the roller being polygonal.

"2. A roller for pivotal mounting and coacting with an end of a hair curler to secure clamp means thereof in hair-clamping position, the roller being resilient and having a polygonal periphery."

During the motion period (following the opening of the preliminary statements of the respective parties) Renstrom moved to dissolve the interference. The motion was denied by the Primary Examiner. Renstrom took no testimony and orders by the Examiner of Interferences followed, culminating in one of November 27, 1940, making the award of priority to Solomon, which, upon appeal by Renstrom, was affirmed by the board in the decision now before us for review.

From the decision of the Primary Examiner we quote the following description, the italics being supplied, and numerals omitted: "The common invention relates to a hair curler comprising a tubular mandrel, a semi-tubular clamping finger pivotally connected to the mandrel, and a loop whose intwined ends form the pivot for connecting the tubular, semi-tubular, and loop members, which loop is provided at its bight portion with an element to be partly received within the open end of the tube for holding the parts closed. In operation of the device, the outer end of a strand of hair is placed beneath the clamping finger and bound to the mandrel, the strand of hair is then...