Cupples v. Marzall, Civ. A. No. 4905-51.

Citation92 USPQ 169,101 F. Supp. 579
Decision Date09 January 1952
Docket NumberCiv. A. No. 4905-51.
PartiesCUPPLES v. MARZALL.
CourtUnited States District Courts. United States District Court (Columbia)

Homer L. Cupples, in pro per.

E. L. Reynolds, Solicitor, Washington, D. C., for defendant.

KEECH, District Judge.

This action is brought by the plaintiff, Homer L. Cupples, against the Commissioner of Patents in dual aspect: (1) for mandamus to compel the Commissioner to admit the plaintiff to practice before the United States Patent Office, and (2) for review under 35 U.S.C.A. § 11, as supplemented by Local Civil Rule 95, of the Commissioner's action denying the plaintiff admission to practice.

In view of the statutory provision for judicial review of the Commissioner's denial of admission to practice, the court holds that mandamus will not lie.

The second aspect of plaintiff's action presents a more difficult problem, namely, the scope of the judicial review provided by 35 U.S.C.A. § 11. The court has been informed by the plaintiff and counsel for the government that this is the first case where a judicial review of denial of admission has been sought in the District Court pursuant to § 11. Hence, the method by which this court should review the Commissioner's action on the record, as required by Local Civil Rule 95, is a novel question.

Most of the facts in this case are undisputed. On May 22, 1951, plaintiff applied for admission to practice before the United States Patent Office. The plaintiff was admitted to a written examination held on August 6, 1951, in Washington, D. C., to determine his qualifications for admission. Plaintiff attended the examination and wrote answers to every question. Under date of October 30, 1951, the plaintiff was informed by the Chairman of the Committee on Enrollment that he had not attained a passing grade in the examination. On November 3, 1951, the plaintiff filed a petition to the Commissioner of Patents requesting that he determine the correctness of identity of the examination papers attributed to plaintiff and the correctness of the clerical operations involved in computing and transcribing the grade thereof, and review plaintiff's examination papers on the merits. Under date of November 15, 1951, plaintiff was informed by the Acting Chairman of the Committee on Enrollment that his petition had been referred to the Committee, his examination papers had been reviewed, and the original decision affirmed.

The plaintiff contends that the provision in Rule 341(c) of the Patent Office, 35 U.S. C.A.Appendix, 37 C.F.R. 1.341(c) requiring written examinations to determine the scientific and technical qualifications of applicants for admission to practice before the Patent Office, is invalid and void as beyond the authority conferred by 35 U. S.C.A. § 11; that he should have been admitted to practice on his application and supplemental papers in support thereof; and that his answers to the questions propounded in the written examination entitled him to a passing grade. Further objection to the written examination is made on the ground that the examination paper which plaintiff wrote and submitted has not at all times been kept in the custody of an official of the Patent Office, in that employees of the Civil Service Commission participated in the conduct of the examination.

The questions raised as to the authority of and procedure followed by the Patent Office present no difficulty. I hold that the Commissioner has the authority and duty under 35 U.S.C.A. § 11 to require a written examination when deemed necessary to ascertain the qualifications of applicants for admission to practice before the Patent Office; that Rule 341(c) of the Patent Office1 is reasonable and valid and is not discriminatory in that taking of an examination may be waived in the case of any person who has served for three years in the examining corps of the Patent Office; that the questions propounded in the examination taken by the plaintiff were pertinent and proper, and that they were reasonable in the sense that they covered subjects in which a prospective practitioner before the Patent Office should be versed. I further find that the examination was prepared and graded by officials of the Patent Office, and that the fact that the actual examination was monitored for the Patent Office by employees of the Civil Service Commission, who delivered the papers to the Patent Office, did not affect the validity of the examination.

We come then to the question whether the statutory provision for judicial review of the Commissioner's action, as supplemented by Local Civil Rule 95, requires the court to review the grading of the plaintiff's answers to the written examination and, if so, how far the court should go in such review.

The pertinent part of 35 U.S.C.A. § 11 provides: "The Commissioner of Patents * * * may prescribe rules and regulations governing the recognition of agents, attorneys, or other persons representing applicants or other parties before his office, and may require of such persons, agents, or attorneys, before being recognized as representatives of applicants or other persons, that they shall show that they are of good moral character and in good repute, are possessed of the necessary qualifications to enable them to render to applicants or other persons valuable service, and are likewise competent to advise and assist applicants or other persons in the presentation or prosecution of their applications or other business before the office. * * * The action of the commissioner may be reviewed upon the petition of the person so refused recognition or so suspended or excluded by the district court of the United States for the District of Columbia under such conditions and upon such proceedings as the said court may by its rules determine."

Local Civil Rule 95, adopted...

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8 cases
  • Franchi v. Manbeck, 92-1085
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • August 12, 1992
    ...(D.D.C.1973) (analyzing PTO sample answer in light of conflicting views of CCPA and U.S. Supreme Court); Cupples v. Marzall, 101 F.Supp. 579, 582, 92 USPQ 169, 171 (D.D.C.1952) (reviewing the record "not only as to law of the case, but also as to whether there was any substantial basis for ......
  • Marmer v. Board of Registration of Chiropractors
    • United States
    • Appeals Court of Massachusetts
    • April 11, 1974
    ...examinations but also of model answers, if any, and a representative sample of the answers by other examinees. See Cupples v. Marzall, 101 F.Supp. 579, 582--583 (D.D.C.1952); York v. State ex rel. Schwaid, 152 Fla. 285, 10 So.2d 813 In the circumstances, the plaintiffs' counsel was not plac......
  • Leeds v. Mosbacher, Civ. A. No. 89-1857.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • February 13, 1990
    ...and not in the courts. Kingsland v. Dorsey, 338 U.S. 318, 320-321, 70 S.Ct. 123, 124-125, 94 L.Ed. 123 (1949); Cupples v. Marzall, 101 F.Supp. 579, 583 (D.D.C.1952), affirmed, 204 F.2d 58 (D.C.Cir.1953). In carrying out this responsibility, the Patent Commissioner has established regulation......
  • Klein v. Peterson, Civ. A. No. 87-2661
    • United States
    • United States District Courts. United States District Court (Columbia)
    • August 16, 1988
    ...a fair hearing has been had and whether there is substantial evidence to support the action of the Patent Office." Cupples v. Marzall, 101 F.Supp. 579, 582 (D.D.C.1952), aff'd, 204 F.2d 58 (D.C.Cir.1959); see also 5 U.S.C. § 706. The scope of review does not contemplate de novo analysis of ......
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1 books & journal articles
  • The Decline of the Patent Registration Exam
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 91, 2021
    • Invalid date
    ...scores would be given for each section and that, beginning in 1999, examinees would "receive one score only"). 125. Cupples v. Marzall, 101 F. Supp. 579, 582-83 (D.D.C. 126. See id. at 581-83 (explaining the procedures provided by federal statute and the local rules of the United States Dis......

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