
    In re Marcus C. Hopkins
    (No. 2128)
    United States Court of Customs and Patent Appeals,
    October 4, 1929
    
      Alba B. Marvin, George J. Hesselman, Clarence M. Fisher, and Richard K. Stevens for appellant.
    
      T. A. Hostetler for .the Commissioner of Patents.
    [Oral argument June 12, 1929, by Mr. Fisher and Mr. Hostetler]
    Before Graham, Presiding Judge, and Bland, Hatfield, Garrett, and Lenroot, Associate Judges
   LeNroot, Judge,

delivered the opinion of the court:

This is an appeal from the Board of Appeals of the Patent Office, wherein the Board of Appeals affirmed the Primary Examiner in refusing the applicant a patent for his design covering a loud-speaker, the claim for which reads as follows: “ The ornamental design for a loud-speaker, substantially as shown.”

The application was rejected upon the ground that the design here in question is not patentable over design patent to applicant No. 70115, May 11, 1926. Said patent discloses a loud-speaker having an octagonal outline, whereas the application design here under consideration shows a circular outline. There is no other difference.

In order to sustain the application, we must find that the change of design from an octagonal, sound board, covered by patent 70115, to a circular sound board, is inventive in character. This we can not do, and we agree with the Board of Appeals that the mere choice of one well known geometric form rather than another equally well known, which does not in any way modify the other portions of the design, can not support a patent.

The decision of the Board of Appeals of the Patent Office is affirmed.  