The opinion of the court was delivered by: LUHRING
The bill of complaint is filed pursuant to 35 U.S.C. § 63, 35 U.S.C.A. § 63, and seeks the issuance of a patent for improvements in Method and Means of Identifying Parts of a Musical Score.
The alleged invention relates to multipage units comprising consecutive sheets bearing recorded musical compositions. It is more particularly concerned with the identification, in connection with such unit, in a manner instantly appreciable by the eye, of the whole of each of the several themes upon which the musical composition is built up.
The improvement consists in providing indications, such as arrows, legends and jagged lines, so that the beginning and end of a theme sequence may be determined and the principal instrument carrying the specific theme indicated.
All the claims in issue, 1, 2, 8, 9, 12, 13, 15 and 16, were rejected by the Examiner and on appeal the Board of Appeals affirmed.
Claims 1, 2, 8, 12, 15 and 16 are drawn to the article, that is the printed sheet or sheets. Claims 9 and 13 are drawn to the method of identifying the continuity of a "theme sequence" and a "theme," respectively. The identification of the continuity of the theme sequence or theme is accomplished by "locating" the theme sequence or theme on the musically staffed sheets, and "impressing" a series of indices thereon, such as arrows and jagged lines, in order that a person examining the sheets of music may readily see and determine the beginning and extent of the theme sequence.
As to claims 9 and 13 drawn to the method of identifying the continuity of a "theme sequence" and a "theme," the Examiner pointed out that the "identifying" consisted simply in applying the arrows and jagged lines to the printed sheet or sheets, and considered the claims drawn to the process of producing the printed sheets.
The claims were held to be unpatentable on the authority of Ex parte Trevette, 1901 C.D. 170.
The plaintiff makes use of arrows to direct attention of the observer from one point to another, and he employs jagged lines to indicate continuity. It is well known that the use of arrows or similar marks or continuous lines (underscoring) is continually resorted to in pointing out pertinent paragraphs or portions of a theme or subject on pages of printed matter for ready reference or to avoid confusion. It is also common in printed matter to emphasize or draw attention to certain passages, by printing the same in italics, heavy type, or in ink of a different color.
The patent to Sheffield, May 29, 1923, No. 1,456,834, illustrates the use of different kinds of type to show the structure of sentences and the exact relation of their syntactic elements to each other so as to enable the intended meaning of sentences to be readily ascertained.
The asterisk * is used frequently in printing and writing to mark a word or phrase as having a special character, etc., or to direct attention to a particular passage. Everyone is familiar with the index mark or "fist" of the printer to direct special attention to the passage which follows. The plaintiff's arrows are used to indicate either the beginning of a theme and the instruments which carry it or also the transfer during the continuance of the theme from one instrument to another. The "fist" may be used for the same purpose.
Certain well known and arbitrary signs are used in writing and printing music, among which may be cited tr to indicate a trill, and also the tie mark to indicate that the note is carried over, and also that a note begun on one sheet is carried on to the next sheet. Indeed, the plaintiff's jagged line is but an enlargement of the jagged line of the trill symbol.
The plaintiff, testifying as a witness, merely elaborated upon the specifications of the patent application. His testimony abounds in hearsay, and he was unable to testify with any degree of certainty the extent ...