
    In re NYMAN..
    Court of Appeals of District of Columbia.
    Submitted March 14, 1928.
    Decided May 7, 1928.
    No. 2054.
    Patents <§=>22 — Claims relating to variable condensers for use in radio receiving sets adapting scale from one method to another, held properly denied for want of invention.
    Claims of patent relating to variable condensers for use in radio receiving sets, consisting of adaptation of a scale from one method of designation to the other, held properly denied, as constituting merely a matter of calculation, and not rising to dignity of invention.
    Appeal from the Commissioner of Patents.
    Application by Alexander Nyman for a patent relating to variable condensers for use in radio receiving sets. Prom a decision denying the application as to certain claims, petitioner appeals.
    Affirmed.
    W. F. Nickel, of New York City, and Samuel Ostrolenk, of Washington, D. C., for appellant.
    T. A. Hostetler, of Washington, D. C., for Commissioner of Patents.
    Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
   MARTIN, Chief Justice.

Appellant’s application for a patent contained six claims, of which claims 1, 4, 5, and 6 have been refused by concurring decisions of the tribunals of the Patent Office.

The invention relates to variable condensers for use in radio receiving sets. Claims 1 and 4 are illustrative, and read as follows, to wit:

“1. An electric condenser having separated electrically conductive elements, said elements being capable of relative movements, each element having a curved side and a sub-, stantially straight side, the curved side being such and the elements being so mounted that the capacity of the eondenser can be so altered to produce a change of frequency which is always directly proportional to the degree of such movement.”

“4. An electric eondenser having separated electrically conductive elements capable of relative linear movement, one or more of said elements having one or more sides so curved and the elements being so mounted that the capacity of the condenser can be altered to produce a corresponding change in frequency which is directly proportional to the degree of such movement.”

The references relied upon are Lewis, 1, 478, 342, December 18, 1923; Sass, 1,514,733, November 11, 1924; and Principles of Radio Communication, by Morecroft, pp. 794-795. To these may be added the references relied upon in the associated and similar suit, No. 2055 (58 App. D. C. -, 26 F.[2d] 559), as follows, to wit: Marriott, 978,605, December 13, 1910; Donle, 1,240,958, September 25, 1917; Cherpeck, 1,520,329, December 23, 1924; Page (French), 527,974, November 4, 1921; Boyer (French), 564,836, January 12, 1924; and Isenthal (British), 153,858, November 18, 1920.

The references unmistakably disclose the construction herein set out by the appellant, to wit, an electrical condenser having a plurality of conducive plates insulated from each other, mounted so as to be movable edgewise and also in a direction normal to their surfaces, and the plates shaped so as to be suitable for adjusting the capacity of the condenser.

Appellant, however, contends that the scale in his eondenser is arranged according to frequency, instead of wave length, and in a manner which discloses a patentable improvement over the prior art. This is said to be accomplished by a different curvature of the movable plates, .so calculated that equal changes in frequency will be obtained by equal adjustments of the dial, thereby eliminating the crowding upon the dial which is said to be characteristic of the straight line wave length condenser, and enabling a “listener in,” with uniform ease and accuracy, to “tune in” broadcasting stations over the entire broadcasting range.

It is noted by the Commissioner that it has become the custom to classify broadcasting stations according to frequency or oscillations per unit of time, instead of wave length.in meters, as formerly; that this has necessitated a reealibration of condensers and a redesigning and remarking of them accordingly. And the Commissioner finds that the applicant discloses no more than such mathematical calculations and reshaping of the condenser plates as to obtain the variation of capacity which is required in connection with variations in frequency, and which permits of a uniform marking on the dial or scale. The Commissioner adds:

“It being old to shape the overlapping plates of a condenser so the movements of the movable member equal distances, which are indicated by equally spaced markings throughout the scale, will vary the capacity in accordance with uniform variations in wave length, it is deemed clear there was involved no inventive concept to shape the overlapping parts of the condenser plates according to a mathematical calculation based upon the unit of frequency, rather than wave length, so these plate movements of uniform distances, which are indicated, as before, at equally spaced markings on the scale, will vary the capacity according to uniform variations in frequency. Except for this change in the shape of the plates to vary the capacity according to a new basie unit, the structure of the condenser does not differ from that disclosed in the references.”

In our opinion the Commissioner’s conclusion is correct. The relation of wave length and frequency of oscillations is so "elemental in the art that the adaptation of a scale from one method of designation to the other is merely a matter of calculation, and does not rise to the dignity of invention.

The decision of the Commissioner of Patents is affirmed.  