
    
      77 F. (2d) 360
    In re Litle
    (No. 3426)
    United States Court of Customs and Patent Appeals,
    May 27, 1935
    ■ (Jarle 'Whitehead and Albert L. Vogl {Henry S. Morton of counsel) for appellant.
    
      T. A. Hostetler {Howard S. Miller of counsel) for the Commissioner of Patents.
    [Oral argument May 7, 1935, by Mr. Morton and Mr. Miller]
    Before Graham, Presiding Judge, and Bland, Hatfield, Garrett, and Lenroot, Associate Judges
   Hatfield, Judge,

delivered the opinion of the court:

This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming the decision of the Primary Examiner rejecting all of the claims, 11 to 16, inclusive, in appellant’s application for a patent for an alleged invention relating to a device for marketing wall paper.

Claims 11, 14, and 15 are illustrative. They read :

11. A device for marketing wall paper, comprising a container of a capacity and proportion adapted to contain a predetermined number of rolls of wall paper, arranged in a single tier, whereby to provide, a surface upon one side thereof, large in relation to the cubic capacity of said container, for the display thereon of a sample of said contained wall paper.
14. A device for marketing wall paper, comprising a container having a thickness substantially that of a roll of wall paper, a length substantially that of a roll of wall paper and a heighth substantially that of a predetermined number of rolls of wall paper arranged in a tier therein whereby to provide a relatively large surface upon the side of such container for the display thereon of a sample of the -contained paper and a- handle attached to the top edge of said container whereby to provide a package convenient for storage, display and carriage of a predetermined" number of rolls of wall paper. - -
15. A device for marketing wall paper, comprising a container having, a thickness substantially that of a roll of wall paper, a length substantially that of a roll of wall paper and a heighth substantially that of a predetermined number of rolls of wall paper arranged in a tier therein, a handle •attached to the top edge of said container and one. end of said container forming a closure member therefor.

The references are:

Fish, 296,155, Apr. 1, 1884.
Smith, 578,843, Mar. 16, 1897.
Gray, 866,459, Sept. 17, 1907.
Beed, 1,523,039, Jan. 13, 1925.

Appellant’s device is sufficiently described in the appealed claims.

It will be observed that appealed claims 11, 12, and 13, of which claim 11 is illustrative, relate to an article of manufacture, but not to a combination of elements. Claims 14 and 15 are technically combination claims, in that, as it will be observed, each includes a handle attached to the top edge of the container.

The patents to Fish and Smith relate to containers or boxes of ordinary type, each so arranged that a sample of the articles contained therein is fastened to the outside for display purposes.

The patent to Gray relates to a dress suitcase, containing a tray accessible by opening the end of the case. The case is provided with a handle for convenience in carrying.

The patent to Keed relates to a cigarette case, arranged so as to accommodate several tiers of cigarettes. ' The object of the invention is to provide a suitable cigarette case with, a small opening at one end to permit the removal of cigarettes “ with a maximum of convenience and a minimum of exposure to air.”

The appealed claims were rejected by the tribunals of the Patent Office on the ground that it would be obvious to one skilled in the art, in view of the prior art cited, to provide a container of proper capacity and proportion to accommodate a predetermined number of rolls of wall paper, and to permit a display of a sample of its contents on the outerside thereof.

In his decision describing appellant’s alleged invention, the examiner, among other things, said:

Tbe container is proportioned so as to bave a thickness substantially that of a roll of wall paper, a length substantially that of a roll of wall paper and a heighth substantially that of a predetermined number of rolls of wall paper arranged in a tier. On the side of the container the applicant has pasted a sample of its contents.

We deem it unnecessary to enter upon a lengthy discussion of the issues involved.

■ The tribunals of the Patent Office concurred in holding that, although appellant’s device was new, it did not involve invention. ■

■ In its original decision, the Board of Appeals stated:

Appellant has provided a receptacle for packaging wall paper designed to hold only one tier of wall paper rolls and in this manner he provides an exceptionally large exterior surface upon which a display of wall paper may be mounted.
We are satisfied that there is no invention in packing wall paper rolls in receptacles and as it is old to apply samples to the exterior of packages, as shown by the cited art, we do not regard the application of a sample of wall paper to the outside of a wall paper package as involving patentability. We recognize that the type of receptacle employed by appellant is well adapted for easy storing and handling and that it provides the greatest possible exterior area for display purposes. It is our opinion, however, that in determining the type of receptacle to be employed for this purpose both of these advantages would be apparent after a little study as to the best design for the package and we are therefore forced to the conclusion that the selection of this type of package is merely a matter of choice rather than of invention.

The views so expressed by the board meet with our entire approval. Its decision is affirmed.  