In re LA MONTAGNE

In re LA MONTAGNE. Patent Appeal No. 2647. Court of Customs and Patent Appeals. March 31, 1931. Morrison Kennedy & Campbell, of Washington, D. C. (Harold Olsen, of Washington, D. C., of counsel), for appellant. T. A. Hostetler, of Washington, D. C., for Commissioner of Patents. Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges. [MAJORITY — LENROOT, Associate Judge.] LENROOT, Associate Judge. This is an appeal from a decision of the Board of Appeals of the United States Patent Office affirming the decision of . the Examiner in rejecting all of the claims of appellant’s application, six in number, as defining nothing patentable over the prior art. Claim 6 is illustrative of the claims in issue, and reads as follows: “6. As a new article of manufacture, a stocking knit from the toe to the top and including a toe-portion of plain-knitting; a sole and a heel of plain-knitting interknit with the toe-portion; an instep-section of rib-knitting interknit with and successively to the knitting of the sole and heel; a relatively short section of plain-knitting adjoining the ribbed instep, looped to the toe-portion, and interknit with the ribbed instep-; a leg portion of rib-knitting interknit with the ribbed instep and being a continuation of the ribbing in the instep-section and extending to the top of the stocking; and a top-portion inter-knit with the ribbing of the leg-portion and comprising special rib-knitting, the ribbing, thus, terminating at one end of the short-section of plain-knitting looped to the adjoining toe-portion and at the other end with the top-portion of special knitting; the ribbed instep-section having a degree of stretchability substantially greater than that of the short-section of plain-knitting, and the top-portion of special knitting having a degree of Stretchability substantially greater than, that of the ribbed instep-section ; the stocking, in consequence, being characterized by relatively high extensibility at the top, with no- substantial strain at the instep-section, and being comfortable to the wearer and more easily slipped onto the foot and leg.” The references are: La Montague et al., 1,282,880, October 29, 1918; Murphy et al., 1,626,049, April 26, 1927. It is conceded by appellant that the reference Murphy shows all of the elements of the claims here in issue except the special ribbed top of the same. The reference La Montague is a patent to appellant for a knitting machine, and it is conceded by him that the- top portion of the stocking embodied in his present application is fully disclosed in said patent. Appellant therefore does not claim that any of the elements of the claims here involved are new. On the contrary, he admits that they are old, but does contend that, by combining the elements shown in Murphy’s and in appellant’s prior patent, he has made a true combination producing a new and useful result that involved, invention, and for that reason contends that the claims are patentable. The Board of Appeals held that the claims cover nothing more than an aggregation consisting of the specific stocking of Murphy and a top of suitable elasticity such as disclosed in appellant’s machine patent, and that no invention was involved in making such an aggregation. It is well established that, if an applicant has taken one feature from one patented device and another feature from another patented device and combined them, and has produced no results other than were produced by the original devices in their individual operation, then he has invented nothing. In re Bayer, 35 F.(2d) 66, 17 C. C. P. A. 614; In re Appelburg, 37 F.(2d) 620, 17 C. C. P. A. 820; In re Isherwood, 40 F.(2d) 987, 17 C. C. P. A. 1187. We are clear that the Board of Appeals was correct in holding that the claims here in issue constitute nothing more than an aggregation of elements disclosed in the prior art. The elements so disclosed operate in the same way, in appellant’s present disclosure, as they did in the prior art, and there is no conjoint action between the elements producing a new and useful result. That appellant has produced a useful article which has had great commercial success because of the aggregation of old elements does not of itself establish patentability. Since it clearly appears that appellant’s application does not disclose a combination in a patentable sense, but only an aggregation of old elements, we find no error in the decision of the Board of Appeals, and it is affirmed. Affirmed.