delivered the opinion of the court:
The appellant sought a patent upon a design for a nasal inhaler, in the United States Patent Office. His application was denied by both the examiner and the Board of Appeals, in view of the art, for claimed lack of invention.
The references cited by the board are as follows:
Lobl, 1,340,662, May 18, 1920,
Palmer, 1,431,177, Oct. 10, 1922,
Moore, 1,540,274, June 2, 1925.
Appellant’s design, as shown by the drawings, is for an inhaler with two nipple-like projections rising above the body of the container. Each of these projections has a hole in the apex. The length of the body portion of the container is more than double its width. The longer sides are parallel, while the ends of the container are rounded. Surrounding the flat base of the inhaler are two concentric mouldings integral with the body. The whole is stream lined, the side lines symmetrically converging upward toward the extremities of the inhaling projections. The entire design presents a pleasing appearance, being regular, shapely, and free from angles and irregularities.
The references alleged to be anticipatory are all mechanical patents. Lobl is a container for inhalants. It is rectangular in shape, the corners being rounded. The lower portion consists of a box *956containing the inhalant. Fitting into this is a top portion consisting of two rectangular projections for applying to the nostrils. The sides of these projections are flat, the corners rounded, and the sides adjacent to each other are corrugated. As assembled, the container gives the appearance of a box with a ¿id, the upper margin of the box being parallel with the bottom of the container.
The reference Palmer, which is thought by the office to be basic ”, discloses an inhaler, the base of which is oval in shape. About the base of the inhaler is a rounded flange. Arising from the base are two projections, horn-shaped, bending outward and then inward toward the apices, so that they may be hooked within the nostrils. The outward appearance of these projections is not shown by the drawings.
The patent to Moore shows an inhaler. Its base is rectangular, to which rectangle is attached a curved metal plate, to be held in ill© mouth to keep the inhaler in situ. Bising from the rectangular base are two rectangular projections pierced at their apices. These projections are inclined inward from the base toward the aforementioned plate.
It is elementary that there must be invention to justify the grant of a design patent. Whether there be such invention or not is to be judged largely by the effect of such design upon the ordinary observer and a consideration of the prior art.
We are of opinion that the design presented by appellant is pleasing and artistic, is distinctive, is not suggested by the references, but is substantially different therefrom, produces a different aesthetic effect, and is inventive. In such cases, a patent should be allowed. In re Hormel, 19 C. C. P. A. (Patent) 1046, 56 F. (2d) 672, and In re Muldoon, 19 C. C. P. A. (Patents) 1082, 56 F. (2d) 894.
The decision of the Board of Appeals is reversed.