
    In re HAHN.
    Patent Appeal No. 2888.
    Court of Customs and Patent Appeals.
    Feb. 1, 1932.
    GRAHAM, Presiding Judge, and LEN-ROOT, Judge, dissenting in part.
    Howson & Howson, of New York City (William A. Smith, Jr., of Washington, D. C., of counsel), for appellant.
    T. A. Hostetler, of Washington, D. C. (Howard S. Miller, of Washington, D. C., of counsel), for the Commissioner of Patents.
    Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   GARRETT, Associate Judge.

Hahn has here appealed from a decision of the Board of Appeals of the United States Patent Office, affirming a decision of the examiner refusing to allow three claims in an application for “Improvement in Tank Construction” as defining nothing patentable over prior art.

The alleged invention relates to metal tanks adapted for use as storage receptacles for material such as ashes, coke, coal, sand, etc.

The claims are as follows:

“5. A tank including a substantially funnel-shaped section having at least five sides, each side consisting of a plurality of fiat east metal plates secured together in edge-abutting relation, and a four part fitting adapted to be attached in abutment at the lower edge and to constitute a continuation of the said polygonal section and including a discharge opening.”

“20. A tank including a substantially funnel-shaped section having at least five equal sides each consisting of a plurality of east metal plates symmetrically arranged around a vertical center line and having flanges at their abutting edges by moans of which they are united in the structure.”

“21. A tank including a substantially funnel-shaped octagonal section oaeh side of which is composed exclusively of four-sided flat plates, said plates being joined together at their edges and the abutting edges of adjacent plates being in each instance of equal length.”

After a description of the construction, the brief filed in behalf of appellant says:

“Applying the claims before the Honorable Court to the construction above described, it will be seen that appealed claim 5, calls for a tank including a funnel-shaped section (3) having at least five sides, each side consisting of a plurality of flat oast metal plates secured together in edge-abutting relation, and a four part fitting (4) adapted to be attached in abutment at the lower edge and to constitute a continuation of the polygonal section and including a discharge opening; claim 20 calls for a tank including a funnel-shaped section (3) having at least five equal sides, each consisting of a plurality of cast metal plates symmetrically arranged around a vertical center line and having flanges at their abutting edges by means of which they are united in the structure; and claim 21 calls for a tank including a substantially funnel-shaped octagonal section, each side of which is composed exclusively of four-sided flat plates joined together at their edges and the abutting edges of adjacent plates being in each instance of equal length (Italics quoted.)

The references cited are:

Tallerday, 567,667, September 15, 1896.

Harry, 679,146, July 28, 1901.

Strong, 1,422,900, July 18, 1923. ' ,

Appellant’s brief contends that there are at least six essential features of the appealed claims which are not disclosed in the references to wit:

“1. A substantially funnel-shaped section having at least five sides.

“2. A tank having a funnel-shaped section, each side of which consists of a plurality of flat east metal plates.

“3. A flat-sided funnel-shaped tank section, each side of which is composed of a plurality of flat east metal plates secured together m edge-abutting relation.

“4. A similarly constructed funnel-shaped tank portion in which the cast metal plates are symmetrically arranged around a vertical center line.

“5. An assembly of four sided flat plates joined together at their edges in such manner that the abutting edges of adjacent plates are in each instance of equal length and form a funnel-shaped octagonal tank section.

“6. The funnel-shaped tank section having at least five sides, together with a four part fitting adapted to constitute a lower terminal portion forming a discharge opening.” (Italics quoted.)

The decision of the Board of Appeals says:

“Strong discloses a four sided tank provided with a four sided funnel-shaped section, the funnel-shaped section being constructed at its lower end to form a gate controlled outlet. The upper portion of the tank is formed of flat metal plates.

“Harry and Tallerday both disclose cylindrical tanks formed of sections secured together in edge-abutting relation by means of outwardly extending flanges.

“We have carefully compared applicant’s tank with the tanks disclosed in the references relied on by the examiner and have carefully considered the advantages stated in applicant’s brief to be possessed by his tank by virtue of certain materials and structural features but we are constrained to agree with the examiner that the appealed claims are not patentable over the references relied on. While Strong discloses a tank provided with a four sided funnel-shaped section it would appear obvious that the number of sides of the funnel-shaped section might be increased to more nearly approach the cylindrical form and that a plate construction might be used for the funnel-shaped section as well as for the upper section. The lower end of the funnel-shaped section forming the gate controlled outlet in Strong’s tank is apparently four sided and, even if it were not, the choice of four sides would not we consider be a matter of invention. To make up a tank of sections secured together in edge-abutting relation by flanges is old in the art as disclosed by Harry and Tallerday and would suggest itself to any one desiring to make up a tank of sections. Further the use of cast metal plates is considered to be" merely a choice of materials.”

In so far as the foregoing decision of the Board of Appeals relates to claims 20 and 21, we are in accord therewith. We do not feel that all the features recited in appellant's brief as not being disclosed in the references cited present patentable elements or that they render those claims allowable, but we feel differently as to patentability of claim 5.

This shows a combination of a tank as described with a “four part fitting adapted to be attached in abutment,” etc., which no prior art cited appears to anticipate and which seems to us to be inventive. It is a new and, apparently, a useful device, and appellant is entitled, at least, to have any actual doubt resolved in favor of patentability. In re Lester Kirsehbraun, 44 F.(2d) 675, 18 C. C. P. A. 735. (Italics ours.)

The decision of the Board of Appeals is modified, being reversed as to claim 5 and affirmed as to claims 20. and 21.

Modified.

GRAHAM, Presiding Judge, and LE2STROOT, Judge, dissent as to elaim 5.  