Patent for ornamental design of rivet-setting machine held properly refused, where there was nothing about assembled mechanical device which served to beautify, embellish, or adorn it, for, while it is not necessary, under Rev. St. § 4929, as amended by Act May 9, 1902 (35 USCA § 73; Comp. St. § 9475), that design shall be work of fine arts, it must be new, original, and "ornamental"; that is, either embellished or adorned, or distinguished by its grace or symmetry of form. ents. The appellant in November, 1921, filed his application for a patent, in which he alleged that he had invented "a certain new, original, and ornamental design for a rivetsetting machine," and in that application made claim to "a rivet-setting machine having ornamental features of design as illustrated in the drawings." The drawings submitted with the application disclose a rivet-setting machine, every part of which is purely utilitarian, and without ornamentation of any kind. There is nothing about the assembled mechanical device which serves to beautify, embellish, or adorn it. The several parts of the mechanism, whether circular, curved, rounded, or spiral, are assembled into an entirety which is lacking in symmetry, wanting in grace, and destitute of any appeal to the senses or emotions. The design has no human interest, other than that aroused by the utilitarian Appeal from the Commissioner of Pat- nature of the machine. In the matter of the application of Edwin B. Stimpson for a patent for an ornamental design of a rivet-setting machine. From the decision of the Commissioner, refusing to is sue the patent, thereby affirming the action of the Examiner and Examiner in Chief, applicant appeals. Affirmed. W. F. Hall, of Washington, D. C., and F. J. Kent, of New York City, for appellant. T. A. Hostetler, of Washington, D. C., for Commissioner of Patents. Before MARTIN, Chief Justice, VAN ORSDEL, Associate Justice, and SMITH, Judge of the United States Court of Customs Appeals. SMITH, Acting Associate Justice. This is an appeal from the decision of the Commissioner of Patents, refusing to issue a patent to the appellant for an ornamental design of a rivet-setting machine, thereby affirming the action of the Examiner and the Examiners in Chief. A thing may be useful and ornamental, and may please, both because of the purpose for which it was made and because of its beauty. That which is utilitarian, however, pleases because it meets the approval of reason, while that which is ornamental gratifies the senses, without reasoning out the why or the wherefore. To bring a design within the meaning of section 4929 of the Revised Statutes, as amended by the Act of May 9, 1902 (35 USCA § 73; Comp. St. § 9475), it must be new, original, and ornamental. The design in issue may be new and original as to form, but it is not ornamental, inasmuch as it does not please the senses or excite the emotions by its color effects, or by its proportion of form. It is not necessary that the design contemplated by section 4929 should be a work of the fine arts, but it is necessary that the design should be new and original, and either embellished or adorned, or distinguished by its grace or symmetry of form. The decision of the Commissioner of Patents is affirmed. Affirmed. 24 F.(2d) MEMORANDUM DECISIONS 2 In the Matter of the Application of Harry In the Matter of the Application of Morris P. VISSERING. H. H. Benjamin, of Chicago, Ill., and J. T. Basseches, of New York City, for appellant. T. A. Hostetler, of Washington, D. C., for Com'r of Patents. Before MARTIN, Chief Justice; VAN ORSDEL, Associate Justice; and SMITH, Judge of the United States Court of Customs Appeals. VAN ORSDEL, Associate Justice. This appeal is from the Commissioner of Patents rejecting appellant's application for a patent for a car brake step described in the following claim: "1. A brake step adapted to be secured to a car body and having a shelf portion adapted to act as a rest for the foot and provided with an abutment portion comprising a plurality of continuous spaced pressed portions." The step is Z-shaped in cross section, and supported by V-shaped brackets. It is made of pressed sheet metal provided with corrugations on the upper surface to prevent the user from slipping. In the opinions of the tribunals of the Patent Office, the construction upon which the patent is sought is clearly pointed out in three references relied upon, and from an examination of the prior art we agree with the Commissioner "that applicant has done no more than pick out one feature from one patent, another from another, and so on, and unite them in a single structure. The step possesses no new or improved function as a result of such assemblage of old features." The decision of the Commissioner is affirmed. HOLMES. Court of Appeals of District of Columbia. Submitted March 13, 1928. Decided April 2, 1928. No. 2042. L. A. Maxson, of Claremont, N. H., for appellant. T. A. Hostetler, of Washington, D. C., for appellee. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. ROBB, Associate Justice. Appeal from Patent Office decision refusing to allow claims in appellant's application for a patent involving a device comprising a compound reduction gearing, having means for supplying motive fluid to the meshing teeth of each gear to form a motor. The case was pending in the Patent Office more than eight years and was very careful ly considered by the various tribunals, each writing an opinion. After an adverse decision by the Board of Examiners in Chief, appellant canceled all the rejected claims and substituted others, which the Board refused to consider. On Appeal to the Commissioner, he ruled that "while these claims should have been presented to the examiner in order that his opinion as to them should be before the appellate tribunals, yet in view of the history of the case, these claims will be admitted and here considered." full consideration, the Commissioner disallowed the substituted claims. After We have carefully examined the Commissioner's decision in the light of appellant's argument and brief, and are convinced of its correctness. We therefore affirm the decision, without a restatement of reasons. Affirmed. 3 of America, Appellee. C. B. COTTRELL & SONS COMPANY, Appel- CHIN TOY, Appellant, v. UNITED STATES lant, v. CLAYBOURN PROCESS CORPORATION, Appellee. Circuit Court of Appeals, Seventh Circuit. March 29, 1928. No. 3896. Appeal from the District Court of the United States for the Eastern District of Wisconsin. Decree (17 F.[2d] 279) affirmed. E. Clarkson Seward, of New York City, for appellant. Circuit Court of Appeals, Fifth Circuit. Rehearing Denied March 31, 1928. Appeal from the District Court of the United States for the Eastern District of Louisiana; Louis H. Burns, Judge. Chandler C. Luzenberg, of New Orleans, La., for appellant. Wayne G. Borah, U. S. Atty., and E. E. Louis Quarles, of Milwaukee, Wis., for Talbot, Asst. U. S. Atty., both of New Orappellee. Before EVANS, PAGE, and ANDERSON, Circuit Judges. PER CURIAM. Plaintiff brought suit on two patents the validity and infringement of which defendant contested. The District Court found for the defendant and dismissed the suit for want of equity. In disposing of the suit, Judge Geiger filed an opinion reported in (D. C.) 17 F. (2d) 279, which very fully discusses the validity of the patents. We have studied it thoroughly in the light of the exhaustive brief which appellant has filed, and we are convinced that the District Court reached the correct conclusion. The opinion of the District Court is so complete, and the reasons for the conclusion are so well stated, that further discussion of the merits by this court would be unjustifiable. The decree is affirmed. 2 C. F. HARMS COMPANY, Libelant-Appellee, v. CHIARELLO BROTHERS COMPANY, Respondent-Appellee; MT. VERNON BUILDERS' SUPPLY COMPANY et al., Respondents-Appellants. Circuit Court of Appeals, Second Circuit. February 23, 1928. No. 200. Appeal from the District Court of the United States for the Southern District of New York. Horace L. Cheyney, of New York City, for appellants. Wm. F. Purdy and J. Newton Nash, both of New York City, for appellees. Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges. PER CURIAM. Decree affirmed in open court. (No written opinion filed in court below.) leans, La., for the United States. Before WALKER, BRYAN, and FOSTER, Circuit Judges. PER CURIAM. The order or decree appealed from is affirmed. 4 CHIN WAH KEE, Appellant, v. UNITED STATES of America, Appellee. Circuit Court of Appeals, Fifth Circuit. Rehearing Denied March 31, 1928. Appeal from the District Court of the United States for the Eastern District of Louisiana; Louis H. Burns, Judge. Chandler C. Luzenberg, of New Orleans, La., for appellant. Wayne G. Borah, U. S. Atty., and E. E. Talbot, Asst. U. S. Atty., both of New Orleans, La., for the United States. Before WALKER, BRYAN, and FOSTER, Circuit Judges. PER CURIAM. The order or decree appealed from is affirmed. 5 CHIN YIK CHAR, Appellant, v. UNITED Rehearing Denied March 31, 1928. Appeal from the District Court of the United States for the Eastern District of Louisiana; Louis H. Burns, Judge. Hugh S. Suthon, of New Orleans, La., for appellant. 24 F.(2d) W. G. Borah, U. S. Atty., and E. E. Talbot, Asst. U. S. Atty., both of New Orleans, La., for the United States. Before WALKER, BRYAN, and FOSTER, Circuit Judges. PER CURIAM. The order or decree appealed from is affirmed. CHOW GEE, Appellant, v. UNITED STATES of America, Appellee. Circuit Court of Appeals, Fifth Circuit. Rehearing Denied March 31, 1928. Appeal from the District Court of the United States for the Eastern District of Louisiana; Louis H. Burns, Judge. Hugh S. Suthon, of New Orleans, La., for appellant. W. G. Borah, U. S. Atty., and E. E. Talbot, Asst. U. S. Atty., both of New Orleans, La., for the United States. 3 CORONA COAL COMPANY, Claimant of Steam Tug ADLER, Appellant, v. UNITED FRUIT STEAMSHIP CORPORATION, Appellee. Circuit Court of Appeals, Fifth Circuit. March 31, 1928. No. 5170. Appeal from the District Court of the United States for the Eastern District of Louisiana; Louis H. Burns, Judge. Richard B. Montgomery and Richard B. Montgomery, Jr., both of New Orleans, La., for appellant. Philip S. Gidiere, of New Orleans, La. (Philip S. Gidiere and Spencer, Gidiere, Phelps & Dunbar, all of New Orleans, La., on the brief), for appellee. Before WALKER, BRYAN, and FOSTER, Circuit Judges. PER CURIAM. While the steamship Abangarez was lying in the Mississippi river in the port of New Orleans made fast to a dock, she was run into by the steam tug Adler, while that tug was attempting to descend Before WALKER, BRYAN, and FOS- the river for the purpose of getting alongTER, Circuit Judges. side another vessel which was docked at a point below the Abangarez. The Adler was PER CURIAM. The order or decree ap- caused by the collision. The claim asserted libeled for the damage to the Abangarez pealed from is affirmed. by the libel was resisted on the ground that the collision was the result of inevitable accident. The decree was in favor of the libelant for the amount which the parties stipulated was the amount of damages sustained by the libelant as a result of the collision. We are of opinion that the evidence did not show that the collision was due to inevitable accident, and that the court did not err in rendering the decree appealed from. That decree is affirmed. 4 R. BRUMWELL et al. Duell, Dunn & Anderson, of New York Abel DAVIS et al., Plaintiffs in Error, v. F. City (Clifford E. Dunn and David A. Woodcock, both of New York City, of counsel), for appellant. Circuit Court of Appeals, Eighth Circuit. January 3, 1928.. No. 7930. Error to the District Court of the United States for the District of South Dakota. U. S. G. Cherry, Holton Davenport, and Gale B. Braithwaite, all of Sioux Falls, S. D., for plaintiffs in error. T. H. Null, of Huron, S. D., for defendants in error. PER CURIAM. Writ of error dismissed with costs on motion of defendants in error under Rules 23 and 24. In the Matter of Edward I. DOBRIN, Bank- Circuit Court of Appeals, Second Circuit. No. 252. Appeal from the District Court of the United States for the Southern District of New York. 3 Circuit Court of Appeals, Second Circuit. No. 140. Appeal from the District Court of the United States for the Eastern District of New York. Burlingham, Veeder, Masten & Fearey, of New York City (Chauncey I. Clark and Louis Jersawitz, of New York City, for Eugene Underwood, Jr., both of New York City, of counsel), for appellant. appellant. C. Edward Benoit, of New York City, for appellee. Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges. PER CURIAM. Order affirmed in open court. Alexander & Ash, of New York City (Peter Alexander, of New York City, of counsel), for appellee. Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges. PER CURIAM. Decree (14 F.[2d] 482) affirmed, with costs. 2 R. B. EAMES, Appellant, v. Steamship IN- Circuit Court of Appeals, Fourth Circuit. No. 2622. Appeal from the District Court of the United States for the Eastern District of South Carolina, at Charleston; Ernest F. Cochran, Judge. Henry Bowden, of Norfolk, Va. (Augustine T. Smythe, of Charleston, S. C., and Samuel E. Forwood, of Norfolk, Va., on the brief), for appellant. Harold A. Mouzon, of Charleston, S. C. (Huger, Wilbur, Miller & Mouzon and Alfred Huger, all of Charleston, S. C., on the brief), for appellee. Before WADDILL, PARKER, and NORTHCOTT, Circuit Judges. PER CURIAM. After a careful examination of the testimony, a majority of the 4 Richard J. FOSTER, Libelant-Appellant, v. Circuit Court of Appeals, Second Circuit. No. 186. Appeal from the District Court of the United States for the Western District of New York. Macklin, Brown, Lenahan & Speer, of New York City (Horace L. Cheyney, of New York City, of counsel), for appellant. Brown, Ely & Richards, of Buffalo, N. Y. (Lawrence E. Coffey, of Buffalo, N. Y., of counsel), for appellee. Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges. PER CURIAM. Decree affirmed, with costs. 5 STATES, Defendant in Error. Circuit Court of Appeals, Second Circuit. March 5, 1928. court are of opinion, as was the trial judge, Fred GREENE, Plaintiff in Error, v. UNITED that the injury of libelant did not result from any negligence on the part of the steamship Ingram, her officers or crew, but from the accidental slipping of his own foot, for which the vessel was in no wise responsible. The decree of the District Court dismissing the libel is accordingly affirmed. Affirmed. No. 287. In Error to the District Court of the United States for the Southern District of New York. |