(dissenting).
In my opinion the claimed design is clearly obvious within the meaning of 35 U.S.C. § 103 and therefore unpatentable.
As to the actual rejection before us and who made it, it was the examiner’s position that the design is “rejected for lack of patentable design novelty over the references of record but specifically as lacking patentable design merit * * ”; that “no element of design invention, would be involved in applying the tech-' ñique of circularly brushing a metal sur*992face * * * nor would it require an exercise of the inventive faculties,” and that the differences from the prior art “do not provide the instant design with any new distinctive or ornamental appearance * *
It is something of an oversimplification to say, as did the board, and as does the majority, that all of the foregoing examiner’s grounds of rejection constitute a statement that the design would have been “obvious.” I am unable to tell what statutory basis the examiner applied, whether 35 U.S.C. §§ 102, 103 or 171, the last-mentioned being the only section he referred to. He definitely seems to have had lack of “design novelty” in mind — • whatever that is. The only novelty requirements pertaining to design inventions under section 171 are those of 102, as in the case of other kinds of inventions.
It cannot be gainsaid, and the majority does not attempt to do so, that appellant’s design is primarily the application to an initially flat, finely perforated panel of the old circularly-brushed effect commonly applied to pots, pans, griddles and an infinite variety of other metal or even plastic articles. There is no question but that it looks good on a radio panel, but when metal grilles came into vogue to replace cloth and plastic grilles it seems to me an entirely obvious way to finish them.
The argument which the majority accepts as adequate to take the circularly-brushed effect out of the category of obvious finishing techniques is the moiré effect allegedly produced. I say “allegedly” because I do not believe mere circular brushing of a perforated plate will produce that effect. It is there, in an evanescent way, on a sample radio submitted but it would hardly be noticed unless attention were called to it and under most viewing conditions I would not say it is there at all. Something that is invisible under most conditions seems a slim thread on which to hang patentability of an ornamental design. Furthermore, no moiré pattern is illustrated in the application drawings, wherein the design is supposed to be “shown” — being solely a matter of appearance — nor can one be seen in an illustrative brochure in color submitted at the hearing or its black-and-white reproduction in the record (filed in the Patent Office June 21, 1961).
A peculiar aspect of this case is that this now all-important moiré effect does not, as I indicated, appear to be the result of brushing the perforated metal panel, for the submitted radio sample in which the moiré effect may sometimes be seen does not have a brushed panel. What the specification describes in words as a “satin finish panel having a circularly brushed effect" (my emphasis) produces that “effect” by a ribbed surface, not produced by brushing, the rib being spiral and having spacing about equal to the grooves on a 78 r. p. m. phonograph record. I believe that the moiré effect (when present) results from the combined light-reflecting effect of the ribs and the interference therewith by the multitudinous fine perforations. I do not believe brushing or other abrading commonly used to produce a “circular brushed effect” will produce the moiré effect. The specification does not describe the ribs which do produce the effect or otherwise tell how to obtain it.
Alternatively it might be said that the moiré effect as an aspect of appearance, for which alone design patents are granted, is not “shown” but only mentioned in words and being vague, evanescent, and indefinite cannot be relied on for patentability.
I would affirm.