
    IN THE MATTER OF THE APPEAL OF HENRY W. GOULD FROM THE DECISION OF THE COMMISSIONER OF PATENTS.
    I. A claim for the combination of an advertisement, not described, with an anchored balloon, refused.
    II. The novel organization of co-operative elements or devices into a useful mechanism is invention within the meaning of the statute, whether the elements be individually old or new.
    III. The novelty and utility of a combination in its entirety as a unit are to be regarded, and it must necessarily, therefore, be a fixed and definite organism.
    IV. The mere discovery that it would be a good thing to attach advertisements permanently to balloons does not come within the law protecting a new and useful apparatus.
    STATEMENT OP THE CASE.
    The case is here on an appeal from a decision of the Commissioner of Patents refusing to grant a patent to Henry W. Gould. The claim of the inventor is in the following words “This invention relates to a new and improved mode of advertising goods, wares, and merchandise, telegraphic news, and disseminating information generally on political and other subjects, and it consists in an advertising apparatus composed of a balloon, and handbills, placards, and business-cards, containing information which may be important to the public, and one or more supporting cords or ropes, and a supply tube or pipe connected with a gas-reservoir, the same to be elevated to any desired altitude in the air, while the said gas-reservoir is stationary beneath; the arrangement being as hereinafter more fully described.”
    This is succeeded by a description of the drawing accompanying the application, from which it appears that the essential elements in this combination are a supply-pipe, C, the advertisement D, the balloon A, for elevating and retaining the advertisement at the desired height; and the anchoring-rope B, to retain the balloon and advertisement within the proper distance and under the control of the person employing the device. The claim concludes thus : ,
    “These advertising balloons I design to make of a diameter proportioned to the weight of the advertisements they have to carry, varying probably from four to eight feet, according to the particular purpose for which they are designed.
    “Ido not confine myself to the precise form or arrangement of any of the parts described, as they may be varied in many ways without departing from my invention.
    “Having thus described my invention, I claim as new, and desire to secure by letters-patent—
    “ An advertising apparatus, consisting of balloon, A, one or more supporting ropes, B, and handbills or placards, D, and either with or without a supply-pipe, C, the whole arranged and operated substantially as described.”
    The Acting Commissioner held that no invention is exhibited; that an anchored balloon, being an old and well-known device, and it being a common right, and a mere matter of judgment, to place an advertisement in any eligible position for displaying it, there is no more ground for a patent on account of the selection of an anchored balloon than on account of the selection of any other conspicuous object.
    
      J. J. Coombs for the appellant.
    
      Marcus S. Hopkins for the Patent-Office:
    The history of the state of the art shows that balloons, were invented in France in 1783. According to Knight's American Mechanical Dictionary, the latest and probably the best work of the kind, “ balloons were introduced into the French armies at an early period during the revolution, and were used at the battles of Liege, Fleuris, 1794, and at the sieges of Maints and Ehrenbreitstein, where they were found particularly useful, as only by such means could operations in the elevated citadel be observed.”
    “ Balloons were also employed by the French in the Italian campaign of 1859, at Solferino; and subsequently, during our own civil war, a small corps of balloonists was attached to the Army of the Potomac.”
    
      “The late Prussian aud French war, and especially the siege of Paris, gave rise to the most business-like and systematic use of balloons on record.”
    “Signals have been made, and notices, &o., have been distributed by means of balloons. One was invented by Mr. Shepherd and used in the Arctic regions in search of Sir John Franklin. The arrangement consisted of a number of printed packets of oiled silk or paper, upon which directions were printed', stating the latitude and longitude of the exploring ships, where they were going to, and the points at which provisions had been left. These were attached at proper intervals to a long slow-match made of rope dipped in niter and, as the balloon traveled over the country, the match burned gradually away, releasing the packets consecutively and distributing them over a wide range of country.” Knight’s Amer. Mech. Dict’y, p. 222. (See caption “Balloon,” ib., p. 457.)
    The end sought in advertising, so far as selection of the means is concerned, is to attract public attention to the advertisement itself. This is always done by making it conspicuous either in its position or in its characteristics, or both; this may be said to be the principle of advertising. It is in obedience to this principle that the applicant has selected a balloon. The effect he obtains is precisely the same in kind that results from the selection of any other conspicuous object or position. If it differs in degree, that is immaterial. Tatham vs. Leroy, 1 Blatch., 474; McCormick vs. Seymour, 2 Blatch., 246. A balloon may be a better place for displaying an advertisement than a rope across a street, or a flag-staff, but both operate on the same principle, for the same purpose, in the same manner, and produce the same effect, except perhaps ip, degree. In Cahoon vs. Ring, Judge Clifford said : “ Slight differences in degree cannot be regarded as of rveight in determining a question of substantial similarity or substantial difference.”
   Cartter, C. J.,

delivered the opinion of the court:

This is án appeal from the decision of the Commissioner of Patents refusing to grant a patent to Henry W. Gould, of Ashtabula County, Ohio, for what is called in his specification “an advertising apparatus.” The apparatus is an anchored balloon, which is to carry an advertisement, either printed or painted on a balloon, or on some object which is to be suspended from it or from the anchor-rope. It is specified that more than one anchor-rope may be employed, but that is not material. A gas-reservoir and supply-tube are also described, but are not made essential elements of the contrivance. The essence of the alleged invention is an anchored balloon, bearing upon itself, or holding in suspension in any convenient manner, an advertisement for display before the public. The appellant says, in his specification, “ I do not confine myself to the precise form or arrangement of any of the parts described, as they may be varied in many ways without departing from my invention.” He claims “ an advertising apparatus consisting of a balloon, one or more supporting ropes, and handbills or placards, and either with or without a supply-pipe, the whole arranged and operated substantially as described.” The ground upon which a patent for the subject-matter of this claim is sought, is, that it comprehends a novel combination of elements constituting a useful apparatus. The subject-matter of invention upon which patents are granted is defined by statute to be “ any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” This alleged invention is presented as an apparatus or “machine,” and is to be contemplated under that category of invention. It is well established that the novel organization of co-operative elements or devices into a useful mechanism is invention, within the meaning of the statute, whether the elements be individually old or new. Buck vs. Hermance, Fisher P. R., p. 251; Evans vs. Eaton, Peters C. C. R., p. 343; Barrett vs. Hall, 1 Mass., p. 474; Pennock vs. Dialougue, 4 Wash., p. 543; Foote vs. Silsby, 2 Blatch., p. 270. lit is the novelty and utility of their assemblage and combination that is to be regarded, and such combination is to be considered in its entirety as a unit. Dinmore vs. Schofield, 4 Fish., pp. 154 and 155; Watson vs. Cunningham, ibid., p. 531. It must necessarily, therefore, be a fixed and definite organism.

The obvious defect in the pending application is that the feature or element of the “ apparatus ” which gives it novelty, to wit, the advertisement, does not exist. There is no advertisement described in connection with the balloon, that the court may be advised whether the combination would be new and useful. It is not even claimed that the balloon’ or its fastenings have any peculiar fashion or adaptation to accommodate the suspension of advertisements. The old elements of this invention are left where the inventor found them ; and the new elements, which give novelty to the matter, he has not discovered.

It appears to the court that this application, when stripped of its verbiage, is simply an application for a patent for the discovery that it would be a good thing to attach advertisements permanently to balloons; this certainly does not come within the law protecting anew and useful apparatus.” Even as a new and useful operation it might be doubtful.

The decision of the Commissioner is affirmed.  