In re Fischer

LenROot, J.,

dissenting: I am compelled to dissent from the conclusion reached by the majority in this case because I feel that whether appellant’s disclosure constitutes invention or involves purely mechanical skill is so doubtful as to call for the application of the rule that, in case of doubt as to patentability, such doubt must be resolved in favor of the applicant.

. This is not a case of concurring decisions of the expert tribunals of the Patent Office, holding that there is no invention, because it appears from the record that while appellant’s application was pending a patent upon substantially the same invention was issued to one Faison, No. 1668269. This patent was brought to the attention of both the examiner and the Board of Appeals, but neither made any reference to it in their decisions.

The majority opinion discusses the Rahr reference, which was for an invention relating to the form of shingles so as to insure their *1081"being laid in proper relation by unskilled workmen. Tlie specification of the Rahr reference discloses nothing with regard to the horizontal line, which is one of the elements of appellant’s disclosure, and it has nothing to do with marking foundation sheets or the boards of the roof itself. I am unable to see how this reference is in any way applicable.

The majority opinion calls attention to the fact that it is old to stretch upon a roof a line which has been chalked, flex it and snap it, thus making a mark to indicate the line to which the lower end of the succeeding course of shingles is to extend, and also calls attention to the fact that in applying weather boarding to the walls of a structure the carpenter not infrequently, after having attached one piece, draws a line upon it to fix the point of overlap for the succeeding piece. Instead of this well-known practice being any evidence of want of invention upon the part of appellant, it is, to my mind, exactly the contrary. Foundation sheets to be laid upon a roof have been known, according to the record, for at least 45 years. If for 45 years carpenters have been following the old method of making a chalk line upon the foundation sheets or boards of a roof, involving labor and expense, and during all that period no one has conceived appellant’s method, which avoids such labor and expense, it is some evidence, to my mind, that what appellant did involved more than merely mechanical skill. His invention not only does away with the necessity of using the old line, but it also secures accurate vertical spacing.

Considering the fact that appellant appears to have made a substantial contribution to the art of laying roofs, and that one tribunal of the Patent Office has held a similar claim to be patentable upon a copending application upon the the same state of facts as are here in issue, I believe that sufficient doubt as to want of invention exists to require, as heretofore stated, the application of the rule that doubt must be resolved in favor of the applicant.

In my opinion the decision of the Board of Appeals should be reversed.