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In re MARSON.

Court of Customs and Patent Appeals.

December 19, 1929.

Patent Appeal No. 2140.

B. G. Foster, of Washington, D. C., for appellant.

T. A. Hostetler, of Washington, D. G., for appellee.

Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.

GARRETT, Judge.

This is an ex parte appeal from a decision of the Board of Patent Appeals affirming the action of the examiner in rejecting claims 1, 2, 3, and 4 made by appellant for a .patent for a claimed invention of a folding chair.

The application in the form first rejected by the examiner rested upon three claims, which read as follows:

“1. A folding chair comprising front leg members, a back pivoted at its upper end to and between the upper end portions of the front leg members, rear legs pivoted at their upper ends to intermediate portions of the front leg members and being located at the inner sides of the same, a seat having its *291main body extending between and pivoted directly to tbe front leg members below tbe upper ends of tbe rear legs, the rear end of tbe main body of said seat being reduced in width and located between tbe upper ends . of the rear legs, sliding connections between said reduced rear end of tbe main body of tbe seat and tbe rear legs, and sliding connections between tbe lower end of the back and tbe rear legs between tbe pivotal connections and tbe sliding connections of tbe seat therewith.

“2. A folding chair comprising front leg members, a back pivoted at its upper end to and between tbe upper end portions of the front leg members, rear legs pivoted at their upper ends to intermediate portions of tbe front leg members and being located at tbe inner sides of tbe same, a seat having its main body extending between and pivoted directly to tbe front leg members below tbe -upper ends of tbe rear legs, said rear legs having longitudinal slots and tbe rear end of tbe seat having lugs slidable in tbe slots, and sliding sleeve connections between tbe lower end of tbe back and tbe upper ends of tbe rear legs above tbe slots.

“3. A folding chair, comprising front leg members, a back pivoted at its upper end to and between tbe upper end portions of tbe front leg members, rear legs pivoted at their upper ends to intermediate portions of tbe front leg members and being located at the inner sides of tbe same, a seat having its main body extending between and pivoted directly to tbe front leg members below tbe upper ends of tbe rear legs, said rear legs having longitudinal slots and the rear end of the main body of tbe seat being reduced in width and extending between tbe rear legs, said reduced portions having outstanding lugs slidable in tbe slots, tbe lower end of tbe back being reduced in width and 'extending between tbe upper ends of tbe rear legs above tbe seat, and sliding sleeve connections between tbe reduced lower end of tbe back and tbe upper end of tbe rear legs above tbe slots and tbe seat.”

These were rejected upon three prior patents, to wit: Wolfe, No. 1,284,528, November 12, 1918; Travers, No. 1,396,794, November 15, 1921; Decker, No. 274,730, March 27, 1883.

The final decision by tbe examiner as to these three claims was rendered September 1,1925. An appeal was taken to tbe Board, and, while same was pending, it was discovered that a patent, No. 1,609,689, bad been issued on December 7, 1926, to George H. Bugenhagen, which was and is claimed to contain subject-matter that constitutes an interference with appellant’s application. Appellant, on May 27, 1927, filed a petition, asking that tbe ease be withdrawn temporarily from appeal, and that an amendment adding an additional claim as No. 4 be entered. This claim reads: “4. A folding chair, comprising rigid side bars extending throughout the length of tbe chair, brace legs pivoted thereto adjacent tbe centers thereof, a seat between and pivoted to said bars in a plane below tbe pivotal connection of tbe brace legs to tbe bars, a back between and pivoted at its upper end to said side bars, links pivotally connecting said back and brace legs, and means for limiting movement of tbe seat in one direction.”

By direction of tbe Acting Commissioner, tbe petition was allowed to tbe extent necessary for the requisite procedure in tbe Patent Office, and tbe proposed amendment was directed to be entered and tbe examiners in chief authorized to consider it in connection with tbe claims on appeal. Tbe examiner rejected tbe claim made by this amendment and on October 6, 1927, the appeal having been prosecuted, tbe Board of Appeals affirmed tbe decision of tbe examiner upon all four claims, and from this decision tbe present appeal has been taken, ' bringing tbe matter before this court.

Error is assigned upon tbe rejection of all four claims, but appellant here argues that tbe issue revolves primarily about claim No. 4, and involves tbe question whether claim No. 1, in tbe Bugenhagen patent, embraces subject-matter that constitutes an interference with appellant’s application which was filed prior to tbe Bugenhagen application.

Appellant’s claim 4 inserted by way of amendment is in tbe exact language of Bugenhagen’s claim 1. Discussing it tbe Board of Appeals, in its decision, says: “Applicant has copied a claim from tbe patent to Bugenhagen, No. 1,609,689, with a view to an interference. This claim was rejected as not supported by applicant’s disclosure. In Bugenhagen tbe lower end of the back is connected to tbe rear legs by links 30, 31 and these links are an element of tbe claim. In applicant’s chair tbe back is connected to tbe rear legs by tbe pivoted sleeve 23 sliding on the lower portion of tbe back. The Examiner bolds that tbe term links in tbe claim is not broad enough to cover tbe pivoted sleeves 23. Tbe word ‘link’ is sometimes used very broadly to cover any connection or joining of parts together but when used to define a mechanical strue*292ture it is generally understood to refer to a bar pivoted at each end to other parts of the structure. The Examiner holds that it was used in this sense in allowing the Bugenhagen claim and if construed more broadly the claim would not be patentable over Wolfe of record. However .this may be we are of the opinion that the word has a well understood meaning in the art and cannot be broadened to cover any and all forms of pivotal connections. In- considering the right of a party to make a claim we are not concerned with the question of equivalents and if the structures were held to be equivalents, the patent to Wolfe would be a reference for both.”

It seems, from a study of the decisions of the examiner and the Board of Appeals, that they differentiated between the devices referred to in the Bugenhagen claim as links and those which they refer to in appellant’s application) as “sliding and pivoted sleeves.” Relative to the former, the examiner says: “The links are links 30 and 31 of Bugenhagen, shown elearly in his Fig. 1 as elongated elements pivoted at one end to the back 29 and at the other end to brace legs 18 and 19, respectively.” Of the latter he says: “Instead of these (links as immediately above described) applicant discloses sleeves 22 which are pivoted to the respective brace legs 5 and 6 by pivot 25 and have flanges 23, 24 slidingly embracing the lateral edges respectively of the back 14.”

We are not convinced that the “sliding and pivoted sleeves” of appellant’s claim are so nearly identical with the “links’.’ of the Bugenhagen patent as to justify us in holding that claim 4 of appellant, which was claim 1 of Bugenhagen, covers the device and entitles appellant to have the Bugenhagen patent declared an Interference.

We do think, however, that sliding and pivoted sleeve means, as claimed by appellant in claims 1, 2, and 3, constitute invention, and that he is entitled to patent thereon under the record before us.

The Board of Appeals, while stating in effect that they do not read directly upon Wolfe or upon any single reference, suggest that certain modifications may be made by substituting the seat supporting construction of Travers for that of Wolfe, so that the claims will be anticipated, and that such substitution does not involve invention.

We think that in deducing this suggestion the Board has overlooked the fact that in the sliding operation of the sleeves there is presented a feature which does not appear in either of the references cited, nor, so far as we can determine, is it even suggested by them.

We have held with the Board that the sliding sleeves are not sufficiently similar to the Bugenhagen links to justify the declaration of an interference. We think they differ quite as much from any of the analogous parts of the reference patents as they do from the Bugenhagen links. In re Levy, 55 App. D. C. 137, 2 F.(2d) 939, 940, the court said: “However, it appears from the Examiner’s answer, as well as from appellant’s brief, that some modification of the references at least is essential in order to literally meet the terms of the appealed elaims. * * * It appearing that the Assistant Commissioner failed to give these claims the broad interpretation of which they reasonably were capable, and that when so interpreted they probably would have been allowable to the applicant, we follow our usual course and resolve any doubt in applicant’s favor.”

It appears to us that the “sliding and pivoted sleeve” feature involved in claims 1, 2, and 3 is patentable.

The decision of the Board is affirmed as to claim 4 and reversed as to claims 1, 2, and 3.

Modified.

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