(dissenting). We are of the opinion that the several tribunals of the Patent Office in refusing the application for- a design patent in the instant case reached a correct decision, and accordingly we respectfully dissent from the holding of the majority of our court, reversing same.
The Examiner, the Examiners in Chief, and the Assistant Commissioner, acting for the Commissioner, unanimously agreed in the rejection of the application, so that we have that uniformity of decision by the Patent Office tribunals which this court should not reverse unless error clearly appear. We are unable to agree that there was such error.
Broadly speaking, their rejection rests upon the ground that the design disclosed and claimed does not represent patentable subject-matter under the provision of section 4929 R. S., 35 USCA § 73, the pertinent portion, of which is quoted in the majority opinion.
The statute in its present form was derived from the Act of July 8,1876, e. 230, as amended by the Act of May 9, 1902, c. 783, and is perhaps somewhat broader than the design law which it superseded, but not, we think, broad enough to include articles Hke that here involved.
The present law has been the subject of numerous interpretations, and under it many design patents have been granted. That there have been decisions somewhat conflicting is *425not surprising, since opinions of individuals differ, not only as to -what is ornamentation, but as to what may he a proper subject-matter for the application of patentable ornamental designs.
We think the principle asserted in Williams Calk Co. v. Kemmerer, 145 F. 928, 76 C. C. A. 466, affirming (C. C.) 136 F. 210, is sound. The subject-matter of the claimed design there involved" was a horseshoe calk. Letters patent issued for it, and the article became involved in an infringement suit. The court held the patent invalid because “the subject of it is not one patentable as a design” saying: “An article to be a proper subject for a design patent must be one which by artistic treatment in form and configuration may be given value from an aesthetic point of view.”
In North British Rubber Co. v. Racine Rubber Tire Co. of New York (C. C. A.) 271 F. 936, the court said: “Some articles of manufacture are incapable of being the subjects of design patents, for want of reason to suppose that their appearance can ever really matter to anybody.”
Other authorities, some of which are referred to in the majority opinion, seem to be to the same purport.
Mention is made in the majority opinion of a design patent upon a chair. It seems to us that there is a manifest difference in the necessary or desirable aesthetic qualities of an article of furniture for use in the household and an implement such as a horseshoe calk or a riveting machine or a concrete mixer.
It may be true that a search of the Patent Office files would disclose many design patents for articles of manufacture which to our minds would present as few elements of appeal to- the aesthetic taste as does the article here involved, but, in so far as we can discern from the record, the modem practice in that office is to more generally restrict such patents and bring them within a narrower scope, requiring that the subjeet-matter shall be one in which ornamentation adds something to the article beyond mere attractiveness for aiding in its sale, and we approve of this later tendency.
Without challenging the opinion that salability may be a legitimate factor for consideration, we cannot bring ourselves to agree that a patent may legally rest upon that as the sole factor, and we see little more than this involved in the mechanism in the instant case.
It would be difficult to lay down any hard and fast rule by which it could be declared affirmatively what articles may properly be the subject of design patent, but we experience little difficulty in arriving at the conclusion that a concrete mixer is not one, thus agreeing with the tribunals of the Patent Office in that regard.
We are unable to- believe that it was the intent of Congress to patronize the arts and develop the aesthetic sense of the citizenship by giving the monopoly -assured by the patent laws to a design for a concrete- mixer. It has escaped our observation if the pulchritude of articles like concrete mixers has ever excited any great public consideration.
In the recent ease In re Eifel, O. G. Dec. 17, 1929, 389, 533, this court affirmed the decision of the Commissioner of Patents denying an application for a patent for a design for wrenches. We there said: “ * * * But there is no ornamentation possessing originality and beauty sufficient to justify granting a design patent under the statute, the purpose of which has oftimes been declared to be to encourage art and decoration which appeals to the (esthetic sense?’ — citing Smith & Co. v. Peck, Stow & Wilcox Co. (C. C. A.) 262 F. 415; Ex parte Parkinson 1871 C. D. 251. (Italics ours.)
We further said "there:
“The rejection of the application by the Commissioner seems to- be based upon well settled principles. Nothing has been shown to us to indicate that the decision was erroneous.”
We think the reasoning in that ease is applicable to the instant case, although the decision there rested upon the design itself rather than the subject-matter.
We pretermit any discussion of other and subsidiary matters that may be involved, such as the patentability of -a design for a machine of moving parts, the question of whether a unitary design is disclosed, etc., because we are in dissent upon the issue which we regard as being decisive of the right of the case. We think the decision of the Commissioner should be sustained.