Opinion
Charles K. Davies, Jr., and Frank E. Serivener, both of Washington, D.C., for plaintiffs.
W.W. Cochran, Sol., U.S. Patent Office, of Washington, D.C., for defendant.
BAILEY, Justice.
This is an action pursuant to R.S. Sec. 4915, 35 U.S.C.A. § 63, seeking an order authorizing the Commissioner of Patents, the defendant herein, to issue letters patent to plaintiffs for their invention relating to what the plaintiffs designate as a system of musical dynamics.
This system consists essentially in the use of different colors indicating the volume of sound to be given each note in a musical composition. As, for instance, red to indicate fortissimo and blue to indicate pianissimo and other different colors to indicate the degree of volume desired. The claims were refused by the defendant on two grounds. First, that they are directed to subject matter which, under the statutes, cannot be accorded patent protection and, second, that they define no invention over two prior patents.
It is well settled that neither printed matter itself nor methods which involve nothing more than use of printing matter is patentable. This is conceded by the plaintiffs. In view of this it is clear that the type of subject matter claimed here does not come within the scope of the patent statutes. So far as those claims are drawn to methods they are not methods which reduce anything to a different state or thing. So far as they are drawn to articles they do not recite anything which is physically new, but the differences relied on by the plaintiffs reside solely in the significance of symbols appearing on paper or some similar material.
So far as the testimony offered at the trial, as to possible use of the plaintiffs' idea in motion pictures, these uses are not suggested in plaintiffs' application.
As to earlier patents, both the Acee and Harper patents disclose the use of different colors in musical notation. The former suggests that each of the notes of the scale be printed in a different color so that it may be more readily recognized. Harper, in addition, suggests that the notes of the different parts in part music may be given different colors and that colors might be used to distinguish 'tone, semitones, or other characters or musical signs. ' It would seem that other characters or musical signs could be used to indicate the ordinary words used in musical notation to distinguish different degrees of volume.
I am of the opinion that the claims involved were properly rejected for the reasons stated and I find nothing in the evidence offered in this case to overcome the action of the defendant. The complaint will be dismissed.