In re Frank JARDINE and James Cooper

In re Frank JARDINE and James Cooper. Patent Appeal No. 3044. Court of Customs and Patent Appeals. Feb. 27, 1933. Richey & Watts, of Cleveland, Ohio (Donald A. Gardiner, of Washington, D. C., and B. D. Watts, P. M. Bosworth, and H. F. MeNenny, all of Cleveland, Ohio, of counsel), for appellants. T. A. Hostetler, of Washington, D. C. (Howard S. Miller, of Washington, D. C., of counsel), for Commissioner of Patents. Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges. [MAJORITY — GRAHAM, Presiding Judge.] GRAHAM, Presiding Judge. A petition for rehearing has been filed herein, from which it appears that certain language used in our opinion of December 27, 1932, 62 F.(2d) 194, 20 C. C. P. A. -, has been understood by counsel as announcing the rule that where, as in this case, an element of a disclosure has been disclaimed, such element will not be considered by the court in determining whether a patentable combination exists. We did not intend to announce any such ruling herein. What we there intended to hold, and what we now hold, is that the individual elements which make up appellants’ combination are, as we view the matter, shown by the references and by the disclaimed subject-matter, which we have treated as the equivalent of a reference, that the disclosed combination of the various .elements, including the disclaimed subject-matter, does not produce a new and useful result, amounting to invention, and that hence there is no patentable’combina^ tion disclosed. We have re-examined the record, in view of the suggestions made in appellants’ petition, but find no reason for coming to any other decision as to the allowability of appellants’ claims than we have heretofore announced. The petition is therefore denied. Petition denied.