MEMORANDUM

I am still of the opinion that the Chase case is in point, but I think that it has been practically overruled in the Brashears case. In the latter case the applicant contended that:

“Estoppel cannot be created against an assignee on the ground of its failure to move under Rule 109 to insert a claim for a subject matter which is not disclosed in said assignee’s interfering application.”

This contention was decided adversely to the applicant by the Court of Customs and Patent Appeals, and, I think, controls the instant case. "While this court is not controlled by the decisions of that court, I think that uniformity in practice should be promoted, and that the decisions of the officials of the Patent Office and of their appellate tribunals in the construction of the rules of the Patent Office should be followed, if not plainly erroneous.

As to the meaning of Rule 109, were it not for many administrative rulings to the contrary, I should construe it as I did in my first memorandum opinion.

The petition for a rehearing is granted and the bill will be dismissed with costs.