
    In re Marcus C. Hopkins
    (No. 2263)
    United States Court of Customs and Patent Appeals,
    February 6, 1930
    
      Pemvie, Dwvis, Mwrvm & Edmonds {Aria B. Marvin, George J. Hesselmcm, Richard K. Stevens, and Clarence M. Pisher of counsel) for appellant.
    
      T. A. Hostetler for the Commissioner of Patents.
    [Oral argument January 16, 1930, by Mr. Fisher and Mr. Hostetler]
    Before Graham, Presiding Judge, and Bland, Hatjithld, Garrett, and Lenroot, Associate Judges
   Bland, Judge,

delivered the opinion of the court:

This is an ex parte appeal from the decision of the Commissioner of Patents, affirming the Board of Examiners in Chief, who under rule 139 recommended the further rejection of applicant’s design patent application which had been rejected by the examiner.

The application calls for a patent for a design for a loud speaker which design is comprised of a .central tympanum of circular conical shape, surrounded by a relatively large circular panel ornamented to give it the appearance of wood.

The examiner denied patentability in view of the patent to Peterson, No. 68061, August 25,1925, but the Board of Examiners in Chief held the applicant’s design patentably distinguished from that disclosed in the reference. The appellant tribunal held, however, that the design was not patentably distinguished from that on which the applicant had already obtained a patent, No. 72262, March 22, 1927, and recommended the denial of the claim in view of the latter patent.

The commissioner’s rejection rests upon there being no patentable distinction between the oval-shaped panel and the circular-shaped panel. With this conclusion we agree. Our reasons for such conclusion are more fully set out in In re Hopkins, patent appeal No. 2226, decided concurrently herewith.

The decision of the commissioner is affirmed.  