54 CCPA

#### Application of Elaine LUSTIG.

Patent Appeal No. 7673.

United States Court of Customs and Patent Appeals.

Dec. 1, 1966.

Smith, J., dissented.

Byerly, Townsend, Watson & Churchill, New York City (Howard J. Churchill, New York City, Robert I. Dennison, Washington, D. C., of counsel), for appellant.

Joseph Schimmel, Washington, D. C. (L. F. Parker, Washington, D. C., of counsel), for the Commissioner of Patents.

*1023Before WORLEY, Chief Judge, and MARTIN, SMITH, and ALMOND, Judges.

WORLEY, Chief Judge.

Here, as in In re Lustig (P.A. 7672) 368 F.2d 1019, 54 CCPA-, decided concurrently, Lustig seeks a patent on

> The ornamental design for a font of type or the like, substantially as shown.

Here, too, appellant’s application was rejected as being unpatentable over certain references.1

In affirming the examiner, the Board of Appeals stated:

> The claim was rejected by the Examiner as being unpatentable over the * * * cited references. A description of the references and the application thereof to the subject matter involved may be found in the Examiner’s Answer.

> We are not convinced by appellant’s arguments that the subject matter claimed is for a patentably novel design.

> From the standpoint of the relative condensation or width-height ratio there is a striking similarity between appellant’s type and the Karnak Obelisk type. We are of the opinion that the variation with respect to the boldness and details of curvature do not provide a design effect which in overall appearance is sufficiently different so that same may be considered to be a new design rather than a modified design of Karnak Obelisk. The difference with respect to the boldness and curvature is fairly suggested in Smith and Benton and such a variation is considered to be obvious.

> From the standpoint of the types of Smith and Benton, we find no patentability in the obvious expedient of elongating the letters shown therein in view of the suggestion of Karnak Obelisk.

Here appellant renews the same arguments advanced below but we are unable to agree that the board erred in its holding.

We are familiar with the decisions2 of this court relied on by appellant but find nothing in any of them controlling of the facts here. The closest decision of possible comfort to appellant is where we resolved a reasonable doubt in favor of appellant in In re Crotty, 272 F.2d 957, 47 CCPA 738. Here, however, there are no grounds for such doubt.

The decision is affirmed.

Affirmed.

Judge RICH took no part in the consideration or decision of this case.

Judge MARTIN participated in the hearing but died before a decision was reached. By agreement of counsel, Judge KIRKPATRICK participated in the decision of this case.

1

. Smith D-38,855 October 8, 1907.

Benton D-51,947 April 9, 1918.

> “Specimens of Type Faces in the U.S. Government Printing Office”, March 1946, page 51 case 135,

> 24 pt Century Bold and page 186, case 645,

> 42 pt, Karnak Obelisk.

2

. The same decisions are relied on in In re Lustig (PA 7672).

SMITH, Judge,

dissenting.

For the reasons elaborated in my dissent in companion appeal PA 7672, 368 F.2d 1019, I would also reverse the decision here appealed.