United States ex rel. Dwiggins v. Ewing

U.S. Court of Appeals for the D.C. Circuit March 1, 1915

United States ex rel. Dwiggins v. Ewing, 43 App. D.C. 204 (D.C. Cir. 1915)

1915 U.S. App. LEXIS 2597

Orsdel

Opinion of the Court

Mr. Justice Van Orsdel

delivered the opinion of the Court:

It was well within the jurisdiction of the Commissioner to order a dissolution of the interference and the rejection of plaintiff’s claims, if convinced that the issues were barred by public use, and therefore not patentable. From the decision of the primary examiner rejecting plaintiff’s claims, when the case *206goes back from the Eoard of Examiners-in-Chief, plaintiff would have an appeal through the tribunals of the Patent Office to this court, and, if it should ultimately be found that his claims are patentable, it would probably result in the declaration of another interference. Plaintiff therefore having a statutory right of appeal, mandamus cannot be substituted for the adequate remedy thus afforded. Moore v. United States, 40 App. D. C. 591.

The judgment is affirmed, • with costs. Affirmed.

A petition for rehearing was overruled March 13, 1915.

Reference

Full Case Name: UNITED STATES EX REL. DWIGGINS v. EWING
Cited By: 1 case
Status: Published
Syllabus: PATENTS; INTERFERENCE; COMMISSIONER OF PATENTS; APPEAL AND Error; Mandamus. 1. It is within the jurisdiction of the Commissioner of Patents to order the dissolution of an interference and the rejection of the claims of one of the parties, if convinced that the issues are barred by public ■use, and therefore not patentable. 2. Where a right of appeal exists, mandamus cannot be substituted therefor; and therefore a petition for the writ of mandamus against the Commissioner of Patents to compel him to vacate certain orders in an interference proceeding, is properly dismissed, where it appears that as a result of such orders a decision of the primary examiner will be made rejecting the petitioner’s claims, and that the petitioner will have an appeal from that decision, through the tribunals of the Patent Office, to this court. (Citing Moore v. United States, 40 App. D. C. 591, s. c. 237 U. S. 197.)