In re McClaire , 16 F.2d 351 ( 1926 )

MARTIN, Chief Justice.

This is an appeal from concurring decisions of the Patent Office, refusing to allow any of the five claims presented by the applicant in the case. The invention consists of a hair curler, formed of short lenghts of insulated wire with a fabric covering, having metallic caps secured over the ends thereof. The caps are so constructed as to fit snugly over the ends of the curlers, and their edges are flared outwardly to facilitate this purpose, and also to insure stretching of the fabrie sheath on the rubber insulation of the wire.

Claim 1 is copied for illustration;

“1. A hair curler comprising a central core of pliable metal, a covering for said core of relatively softer material, a fabric covering for said core covering, and metallic caps secured over the ends; the edges of said caps being turned inwardly and impressed into said core covering to form a resilient locking groove therein, substantially as described.

The references were appellant’s prior patent, November 22, 1921, for a similar hair curler having tied or sewed ends, instead of caps; Weaver’s patent, March 1,1921, for a hair curler having two insulated wires twisted together, surrounded by a fabrie covering, with tips at the ends composed of nonmetallic waterproof material, as by dipping in a waterproof solution; Kelly’s patent, October 4, 1921, disclosing cords with various kinds of metallic tips on the ends; Cummings’ patent, April 23, 1907, disclosing a lacing in which the tip has an interior metal piece rolled and to be cut in two, forming an outer metal cap over the end of the tip; Gregory’s patent, December 6, 1887, disclosing a hair curler composed of a long thin strip of lead or other pliable material, covered with silk and provided with small caps at the ends, to prevent fraying; and 1110-way’s patent, December 7, 1915, showing a hair curler bent into loops.

The applicant’s claims were held to be unpatentable, on the ground that no invention would be involved in forming metal tips on hair curlers of the type shown in the Me-Claire and Weaver patents, in view of the common practice of forming such tips on the ends of cords of various kinds as shown by the references. It was also held that claim 3 is barred under the rule of res adjudicata.

We do not agree with the Commissioner’s decision. The applicant’s claims are combination claims, and as such we do1 not think them anticipated by the references. The improvement in question is a simple one, but it is useful and novel, and discloses invention. The commercial success of the article is persuasive evidence of this. If there be doubt in such a case it should be resolved in favor of the applicant. We think, however, that the rejection of claim 3 upon the ground of res adjudicata must be sustained.

Accordingly the decision of the Commissioner of Patents, rejecting claims 1, 2, 4, and 5, is reversed. The rejection of claim 3 is affirmed.