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In re STIMPSON.

Court of Appeals of District of Columbia.

Submitted January 11, 1928.

Decided March 5, 1928.

No. 2003.

Patents <§=>28 — Patent for “ornamental” design of rivet-setting machine held properly refused, where device was not embellished, adorned, or distinguished by symmetry (Rev, St. § 4929, as amended by Act May 9, 1902 [35 USCA § 73]).

Patent for ornamental design of rivet-setting machine held properly refused, where there was nothing about assembled mechanical device which served to beautify, embellish, or adorn it, for, while it is not necessary, under Rev. St. § 4929, as amended by Act May 9, 1902 (35 USCA § 73; Comp. St. § 9475), that design shall be work of fine arts, it must be new, original, and “ornamental”; that is, either embellished or adorned, or distinguished by its grace or symmetry of form.

Appeal from the Commissioner of Patents.

In the matter of the application of Edwin B. Stimpson for a patent for an ornamental design of a rivet-setting machine. Erom the decision of the Commissioner, refusing to issue the patent, thereby affirming the action of the Examiner and Examiner in Chief, applicant appeals.

Affirmed.

W. E. Hall, of Washington, D. C., and E. J. Kent, of New York City, for appellant.

T. A. Hostetler, of Washington, D. C., for Commissioner of Patents.

Before MARTIN, Chief Justice, VAN ORSDEL, Associate Justice, and SMITH, Judge of the United States Court of Customs Appeals.

SMITH, Acting Associate Justice.

This is an appeal from the decision of the Commissioner of Patents, refusing to issue a patent to the appellánt for an ornamental design of a rivet-setting machine, thereby affirming the action of the .Examiner and the Examiners in Chief.

The appellant in • November, 1921, ■ filed his application for a patent, in which he alleged that he had invented “a certain new, original, and ornamental design for a rivet-setting machine,” and in that application made claim to “a rivet-setting machine having ornamental features of design as illustrated in the drawings.”

The drawings submitted with the application disclose a rivet-setting machine, every part of which is purely utilitarian, and without ornamentation of any kind. There is nothing about the assembled mechanical device which serves to beautify, embellish, or adorn it. The several parts of the mechanism, whether circular, curved, rounded, or spiral, are assembled into an entirety which is lacking in symmetry, wanting in grace, and destitute of any appeal to the senses or emotions. The design has no human interest, other than that aroused by the utilitarian nature of the machine.

A thing may be useful and ornamental, and may please, both because of the purpose for which it was made and because of its beauty. That which is utilitarian, however, pleases because it meets the approval of reason, while that which is ornamental gratifies the senses, without reasoning out the why or the wherefore. To bring a design within the meaning of section 4929 of the Revised Statutes, as amended by the Act of May 9, 1902 (35 USCA § 73; Comp. St. § 9475), it must be new, original, and ornamental. The design in issue may be new and original as to form, but it is not ornamental, inasmuch as it does not please the senses or excite the emotions by its color effects, or by its proportion of form.

It is not necessary that the design contemplated by section 4929 should be a work of the fine arts, ,but it is necessary that the design should be new and original, and either embellished or adorned, or distinguished by its grace or symmetry of form.

The decision of the Commissioner of Patents is affirmed.

Affirmed.

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