APPLICATION OF CROTTY

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Docket Number

Patent Appeal No. 6463.

Attorney(S)

Pyle Fisher, Cleveland, Ohio (Ray S. Pyle, Cleveland, Ohio, of counsel), for appellant. Clarence W. Moore, Washington, D.C. (S. Wm. Cochran, Washington, D.C., of counsel), for Commissioner of Patents.

Judges

Before WORLEY, Chief Judge, and RICH, MARTIN, SMITH and JOHNSON, retired, Judges.

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Smart Summary

Factual and Procedural Background

This appeal arises from the decision of the Board of Appeals of the United States Patent Office affirming the rejection by the Primary Examiner of the single claim in appellant's patent application for an ornamental design of a life jacket. The design features two identical, substantially rectangular buoyant pillows joined by wide flat bands and shoulder straps. The Patent Office rejected the claim based on prior art patents, principally Denton, which discloses a life jacket with two matching pillows connected by narrower straps. The appellant challenges the rejection, arguing that the design as a whole differs in ornamental appearance.

Legal Issues Presented

Whether the appellant's design for a life jacket is patentably distinct from prior art designs, particularly the Denton patent, under the standard that patentability of a design depends primarily on the overall appearance as a whole.
Whether the substitution of rectangular pillows and the use of wider bands under the arms, as opposed to Denton's two-piece pillows and narrow straps, constitutes a new, original, ornamental, and unobvious design.

Arguments of the Parties

Appellant's Arguments

The life jacket design differs in overall appearance from the Denton patent and other cited references.
The selection and assembly of prior art elements to approximate the design does not preclude patentability if the resulting design is new and ornamental.
The changes in proportions and the use of wider bands create a design that is not fairly suggested by the prior art.

Patent Office's Arguments

The substitution of rectangular pillows as shown in Gibson and Straits for Denton's two-piece pillows involves no invention.
Using wider bands under the arms instead of Denton's narrow bands is an obvious modification.
The prior art collectively anticipates the claimed design, justifying rejection.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re Russell, 239 F.2d 387, 44 CCPA 716	Establishes that the primary test of design patentability is the overall appearance of the design as a whole.	The court applied this principle to determine that the appellant's design differs sufficiently in overall appearance from Denton to merit patentability.

Court's Reasoning and Analysis

The court analyzed the appellant's design in comparison to the prior art references, focusing on the overall ornamental appearance rather than isolated elements. Although the prior art disclosed life jackets with rectangular pillows and straps, the court found that the appellant's design differs in the shape and proportions of the pillows and the width of the bands connecting them. The Patent Office's rejection required altering Denton's two-part cushions to single cushions with substantially different proportions and widening the straps beyond what the references fairly suggest. The court emphasized that not every change in proportions is patentable, but the changes here create a new, original, and unobvious ornamental appearance. Given the substantial doubt about the adequacy of the references to support the rejection, the court resolved that doubt in favor of the applicant and reversed the Board's decision.

Holding and Implications

REVERSED.

The court reversed the Board of Appeals' decision affirming the rejection of the patent claim, thereby allowing the appellant's design patent application to proceed. This decision directly benefits the appellant by recognizing the design's patentability based on its overall ornamental appearance. No new precedent was established beyond applying settled principles regarding design patentability.

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Application of Willard E. CROTTY.

WORLEY, Chief Judge.

This appeal is from the decision of the Board of Appeals of the United States Patent Office affirming the rejection by the Primary Examiner of the single claim of appellant's application for a patent on a design for a life jacket. The claim reads:

The ornamental design for a Life Jacket as shown and described.

The references relied on are:

Gibson 1,670,887 May 22, 1928; Denton 1,931,406 October 17, 1933; Straits 2,307,810 January 12, 1943.

Appellant's application discloses a life jacket comprising two identical buoyant pillows of substantially rectangular shape, designed to fit across the chest and back, respectively, of the wearer. They are joined at their ends by relatively wide flat bands of slightly less width than the pillows and adapted to fit under the arms of the wearer. Shoulder straps are secured to the tops of the pillows at points adjacent their ends.

The Denton patent, the principal reference, shows a life jacket in which the front and back are composed of two matching buoyant pillows which are juxtaposed and strapped together to provide a substantially unitary pillow of generally rectangular shape, but with an arcuate depression which, in the front pillow, will lie below the chin, and in the back pillow, below the back of the head when the jacket is in place. The pillows are connected by shoulder straps in substantially the same manner as in appellant's jacket, but are connected by relatively narrow straps which pass under the arms of the wearer.

The Straits and Gibson patents were cited to show use of rectangular pillows in life preserving devices. It was the position of the Patent Office that no invention would be involved in substituting rectangular pillows as shown by Gibson and Straits for the two-piece pillows of Denton and using wide bands under the arms in place of Denton's narrow bands.

It is, of course, well settled that it is the appearance of a design as a whole which is primarily determinative of the issue of patentability. In re Russell, 239 F.2d 387, 44 CCPA 716, and cases there cited. Viewed as a whole, we think appellant's jacket differs in appearance from that of Denton. Such similarities as there are result merely from the fact they are designed to perform the same function.

It is almost always possible to select from the prior art elements which, if assembled in the proper manner, will approximate the design shown in an application, but the fact that such a selection can be made does not necessarily preclude the presence of patentable invention.

Here the attempt to create an anticipating design by the examiner and the board not only requires replacing the two-part cushions of Denton by single cushions of substantially different appearance and proportions, but also requires a widening of the straps to an extent which we doubt is fairly suggested by the references. It goes without saying, of course, that not every change in proportions of parts is a patentable matter — the question is whether the changes result in a new, original, ornamental and unobvious appearance of the design as a whole. Here, a comparison of the overall appearance of applicant's design with the references creates a substantial doubt in our minds that the references are adequate to support the rejection. We feel justified in resolving that doubt in favor of the applicant. Thus, it becomes necessary to reverse the decision of the board.

Reversed.

JOHNSON, Judge, Retired, did not participate in decision.