
    44 F. (2d) 427
    In re Artie Carlson
    (No. 2561)
    United States Court of Customs and Patent Appeals,
    December 1, 1930
    
      N. S. Amstutz for appellant.
    
      T. A. Hostetler (Howard S. Miller, of counsel) for the Commissioner of Patents.
    [Oral argument November 21, 1930, by Mr. Miller]
    Before Graham, presiding judge, and Bland, Hatfield, Garrett, and Lenboot, associate judges
   GaRREtt, Judge,

delivered the opinion of the court:

Appellant seeks patent for a design for a toy airplane. The application was rejected by both the examiner and the Board of Appeals on the ground that the claimed design shows nothing patentable over prior art as illustrated in patent to Keely, design No. 59898, of December 6, 1921. Appeal was taken from the board’s decision to this court.

Both designs show wheeled toys constructed somewhat in airplane form. The Keely design follows the biplane structure, and shows four wheels; that of appellant represents a monoplane and has three wheels. There are differences of configuration in the bodies of the toys.

We do not, however, find in these differences anything of an inventive nature on the part of appellant. Appellant is not a pioneer in this field of toy designing and the modifications of the Keely structure shown in appellant’s structure do not involve invention. Invention must be present in a design in order to render it patentable.

The authorities sustain the action of the Patent Office tribunals. White v. Converse, 20 F. (2d) 311; 365 O. G. 4; Elite Mfg. Co. v. Ashland Mfg. Co., 235 Fed. 893, 895; Chas. Boldt Co. v. Nivison-Weiskopf Co., 194 Fed. 871; King Ventilating Co. v. St. James Ventilating Co., 26 F. (2d) 357, 359; Straus Gas Iron Co. v. William M. Crane Co., 235 Fed. 126.

The decision of the Board of Appeals is affirmed.  