Opinion
No. 5749.
Argued April 6, 1934.
Decided May 14, 1934. Rehearing Denied June 4, 1934.
Appeal from the Supreme Court of the District of Columbia.
Suit by the Black Clawson Company and another against Thomas E. Robertson, Commissioner of Patents, and others. From a decree in favor of the defendants, the plaintiffs appeal.
Case remanded with directions to dismiss the bill.
Reeve Lewis, of Washington, D.C., and Greer Marechal, of Dayton, Ohio, for appellants.
T.A. Hostetler, of Washington, D.C., Sol. of Patent Office, for appellee Robertson.
Gardner W. Pearson, of Lowell, Mass., and Joseph H. Milans, of Washington, D.C., for appellees Bolton Sons, Inc., and Bolton.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, and GRONER, Associate Justices.
Appellants filed a bill in equity in the Supreme Court of the District under section 4915, Rev. St., as amended (section 63, tit. 35, U.S.C. [35 USCA § 63]), against Thomas E. Robertson, as Commissioner of Patents, to authorize that officer to reissue patent No. 1,494,265, dated May 13, 1924. The bill contained a group of claims which had been passed upon by the tribunals of the Patent Office and, in addition, appellants sought to add a group of new claims which had not been regularly filed or considered in the Patent Office. The court below held that the claims rejected by the Patent Office did not involve invention, and that it was without jurisdiction to consider the new claims not in the Patent Office application, and dismissed the bill; whereupon this appeal was taken.
The case in this court was submitted on oral argument and printed briefs on April 6, 1933. Owing to the fact that the question whether under the provisions of section 4915, Rev. St., as amended (35 USCA § 63), claims not in the application as submitted to the Patent Office might be added was raised in a case submitted on March 10, 1933 (No. 5663, Lucke v. Robertson), the decision in the present case awaited the decision in the Lucke Case. On May 8, 1933, an opinion was filed in the Lucke Case, and on motion of the Commissioner of Patents filed May 22, 1933, a rehearing was granted, and final opinion rendered on February 4, 1934. Lucke v. Coe, 63 App. D.C. 61, 69 F.2d 379. Meanwhile, on June 26, 1933, Mr. Robertson was succeeded as Commissioner of Patents by Mr. Conway P. Coe.
On March 2, 1934, the Solicitor for the Patent Office directed our attention to the failure of the Black Clawson Company and Martindale to move, under section 11 of the act of February 13, 1925, c. 229, 43 Stat. 936, 941, U.S.C. title 28, § 780 (28 USCA § 780), that the court "permit the cause to be continued and maintained by or against the successor in office of such officer" within the six months' period during which such a motion should have been filed. We see no escape from the conclusion that the action has abated. Le Crone v. McAdoo, 253 U.S. 217, 40 S. Ct. 510, 64 L. Ed. 869; Claussen v. Curran, 276 U.S. 590, 48 S. Ct. 206, 72 L. Ed. 720; Fix v. Phila. Barge Co., 290 U.S. 530, 54 S. Ct. 270, 78 L. Ed. 481.
We, therefore, remand the case to the court below, with directions to dismiss the bill.
Remanded with directions to dismiss.