
    In re HOPKINS.
    Court of Customs and Patent Appeals.
    February 6, 1930.
    Patent Appeal No. 2226.
    See, also, 34 F.(2d) 1016, 37 F.(2d) 756.
    
      Permie, Davis, Marvin & Edmonds, of New York City (Arba B. Marvin and George J. Hesselman, both of New York City, and Bichard K. Stevens and Clarence M. Fisher, both of Washington, D. C., of counsel), for appellant.
    T. A. Hostetler, of Washington, D. C., for appellee.
    Before GBAHAM, Presiding Judge, and BLAND, HATFIELD, GABBETT, and LENBOOT, Associate Judges.
   BLAND, Associate Judge.

This is an ex parte appeal from the decision of the Commissioner of Patents, refusing applicant a patent for a design covering a loud speaker. The Commissioner denied the application upon the references of Comer, 1,137,187, April 27, 1915, and the French patent to Bagonot, 570,746, applied for July 26, 1923, issued January 21,1924, and published May 6,1924.

Applicant’s device is a loud speaker of the cone type having an octagonal outline and a circular diaphragm.

Both the Comer and the Bagonot patents disclose loud speakers having an octagonal shape. Comer’s is not of the flat type but, viewed from in front, it has substantially the same shape as applicant’s design. The Bagonot patent is not only octagonal in shape, when viewed from in front, but it has a 'flat appearance when viewed from the side.

Applicant in this court stresses the point that the primary examiner rejected the application on one set of references, while the Board of Examiners in Chief rejected it upon another reference, and, upon appeal to the Commissioner, his rejection was based upon entirely different references. The primary examiner’s rejection was based upon Heylmann, 52,394, September 10, 1918, and Peterson, 68,061, August 25, 1925, while the rejection of the Board of Examiners in Chief was based upon there being no patentable difference between the design in this application, involving an octagonal panel, and a design formerly granted to applicant for an oval panel in design patent 72,262, March 22, 1927.

Applicant had applied for a patent which involved appeal No. 2128, involving a cone type of loud speaker, mounted on a circular type of sound board. This was rejected on applicant’s patent, No. 70,115, having a panel octagonal in outline.'

In this court the solicitor for the Patent Office argues that double patenting is not permissible in design patents any more than it is in mechanical patents, and cites Ex parte Whittington, 347 O. G. 281.

The fact that the several tribunals of the Patent .Office have seen fit to rely upon different references does not necessarily argue that the Commissioner’s decision is erroneous. We can see pertinent application in most, if not all, of the references. When all the references axe considered, the lack of invention in applicant’s design is emphasized.

We agree with the solicitor and the Patent Office that the application here under consideration does not show invention over the references cited and the other applications of applicant referred to. Every shape of panel that can be devised upon which a cone type diaphragm or tympanum may be mounted is not necessarily patentable for cone shape loud speakers, which, since superseding the horn type, axe shown to have a universal use and are quite common in the art.

In Knapp v. Will & Baumer Co. (C. C. A.) 273 F. 380, 290 O. G. 645, the eourt, in referring to the shape of a candle as the subject-matter of a design patent application, said: “The right to make any article round or square, or in any other standard form or shape, is inherently open to all, and novelty cannot be predicated of a design for a square candle instead of the ordinary round one.”

The decision of the Commissioner is affirmed.

Affirmed.  