
    In re CARLSON.
    Patent Appeal No. 2561.
    Court of Customs and Patent Appeals.
    Dec. 1, 1930.
    N. S. Amstutz, of Valparaiso, Ind., for appellant.
    T. A. Hostetler, of Washington, D. C. (Howard S. Miller, of Washington, D. C., of counsel), for Commissioner of Patents.
    Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   GARRETT, Associate Judge.

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 hoard’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 Co. v. Converse & Son (C. C. A.) 20 F.(2d) 311, 305 O. G. 4; Elite Mfg. Co. v. Ashland Mfg. Co. (C. C. A.) 235 F. 893, 895; Chas. Boldt Co. v. Nivison-Weiskopf Co. (C. C. A.) 194 F. 871; King Ventilating Co. v. St. James Ventilating Co. (C. C. A.) 20 F.(2d) 357, 359; Strause Gas Iron Co. v. William M. Crane Co. (C. C. A.) 235 F. 126.

The decision of- the Board of Patent Appeals is affirmed.

Affirmed.  