Gager v. Ladd

• Citation: 136 USPQ 627,212 F. Supp. 671
• Decision Date: 15 January 1963
• Docket Number: Civ. A. No. 732-62.
• Parties: John C. GAGER, Plaintiff, v. David L. LADD, Commissioner of Patents, Defendants.
• Court: U.S. District Court — District of Columbia

212 F. Supp. 671

136 USPQ 627

John C. GAGER, Plaintiff, v. David L. LADD, Commissioner of Patents, Defendants.

Civ. A. No. 732-62.

United States District Court D. Columbia.

January 15, 1963.

John C. Gager, plaintiff pro se, Washington, D. C.

Raymond E. Martin, Washington D. C. Attorney for Commissioner of Patents, U. S. Department of Commerce, for defendants.

JACKSON, District Judge.

This is an action brought by plaintiff in proper person for a mandatory injunction to compel the defendant, Commissioner of Patents, to admit the plaintiff to the next regularly scheduled examination for admission to practice before the United States Patent Office, and furthermore, that plaintiff be admitted to an examination of no greater complexity or no greater degree of difficulty than those heretofore given. Jurisdiction is based upon 35 U.S.C. § 32, and Local Civil Rule 95. The facts are not in dispute. During the past several years the plaintiff properly applied for admission to an examination for registration to practice. On each such occasion defendant or his predecessor denied the application. Plaintiff's last application was made on January 2, 1962. The last examination was given on February 5, 1962. Defendant disapproved that application, and plaintiff was notified as follows:

"Your application to take the examination of February 5, 1962, is disapproved. Again you do not satisfactorily show that you have had basic training in scientific and technical matters such as to constitute the equivalent of a degree in engineering or physical science, as required by Rule 341(c) and the marked paragraph of the enclosed circular." (The enclosed circular refers to the circular hereinafter described).

On January 19, 1962, plaintiff addressed a letter to the Secretary of Commerce, inquiring whether plaintiff had exhausted the administrative remedy "in his efforts to have the requirements of Rule 341(c) properly applied." The Secretary of Commerce referred that letter to the Commissioner of Patents who stated in a letter of January 24, 1962 that plaintiff was entitled to credit for the equivalent of one year of college training leading to a degree in engineering on the basis of his training at the United States Merchant Marine Academy. Although the application form set forth six years experience in patent and trademark work, the Commissioner was not willing to grant credit for that practical experience because the description as indicated on the form "does not suggest that it was devoted primarily to the preparation and prosecution of applications for patent." The Commissioner concluded that plaintiff's application had not shown that he had the required training in science and technical matter, and denied the application.

In a letter dated February 2, 1962, plaintiff protested the Commissioner's denial of his application, and inquired whether the letter from the Commissioner of Patents of January 24, 1962, constituted a final administrative determination. The First Assistant Commissioner answered this inquiry in the affirmative on February 16, 1962. The Complaint alleges that the defendant abused his discretion under Rule 341(c) of the Rules of Practice of the Patent Office in refusing to admit plaintiff to an examination. Plaintiff now seeks review here of the action of the Patent Office.

Local Civil Rule 95 of the United States District Court for the District of Columbia, provides for the review of the action of the Commissioner of Patents in refusing a person recognition to practice before the Patent Office. This rule provides, inter alia, that prior to the time for hearing, the petitioner shall file with the Court a certified copy of the proceedings before the Patent Office, which shall constitute the sole basis for the Court's review. (Emphasis supplied).

Rule 341(c) of the Rules of Practice of the Patent Office was promulgated pursuant to 35 U.S.C. § 31, and there is express authority for the promulgation of 341(c) in Section 31. The pertinent part of that Rule requires that the applicant for admission to practice before the Patent Office shall establish to the satisfaction of the Commissioner that he possesses the legal, scientific, and technical qualifications necessary for him to render valuable service and advice to applicants for patents, and is otherwise competent to advise them in the presentation and prosecution of their applications before the Patent Office. Satisfactory proof of those qualifications are to be submitted in writing on prescribed form P.O. 158 supplied by the Patent Office.

In a circular supplied to applicants entitled "General Requirements for Admission to the Examination for Registration to Practice before the Patent Office", the Commissioner indicates the standard to be attained, and includes the following:

"A person seeking registration as a patent agent (section (b)) is admitted to the examination, if he has a degree in engineering or physical science, or the equivalent thereof, from a college or school of recognized standing. A degree in another field may be accepted where the applicant has completed 30 semester hours in chemistry or 28 semester hours in physics, or a combined total of 40 semester hours in chemistry, physics, and engineering. A lesser amount of formal education together with a showing

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