
    In the Matter of the Application of Marcus C. HOPKINS.
    Court of Customs and Patent Appeals.
    February 6, 1930.
    Patent Appeal No. 2265.
    Pennie, Davis, Marvin & Edmonds, of New York City (Arba B. Marvin and George J. Hesselman, both of New York City, and Bichard K. Stevens and Clarence M. Fisher, both of Washington, D. C., of counsel), for appellant.
    T. A. Hostetler, of Washington, D. C., for appellee.
    Before GBAHAM, Presiding Judge, and BLAND, HATFIELD, GABBETT, and LENBOOT, Associate Judges.
   BLAND, Associate Judge.

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. 68,061, 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. 72,262, 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, 37 F.(2d) 755, patent appeal No. 2226, decided concurrently herewith.

The decision of the Commissioner is affirmed.

Affirmed.  