Application of Gruschwitz
Decision Date | 26 July 1963 |
Docket Number | Patent Appeal No. 6885. |
Citation | 320 F.2d 401,50 CCPA 1498 |
Parties | Application of Friedrich GRUSCHWITZ and Albert Fritz. |
Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Michael S. Striker, New York City, for appellant.
Before WORLEY, Chief Judge, and RICH, MARTIN, SMITH and ALMOND, Judges.
All the claims, 10 through 16, in appellants' application1 for a patent on a "Spray-Plastering-Device for Applying Mortar to Ceilings and Walls of Buildings" were rejected as unpatentable over the single reference, Fritz et al., German, Patent No. 1,013,861, January 23, 1958.
In affirming the examiner's rejection, the Board of Appeals states:2
The board, consisting of five rather than the usual three members, unanimously rejected appellants' arguments and affirmed the examiner's holding.
In urging this court to reverse the board, appellants assign as their reasons:
In challenging the legal adequacy of those reasons the Government states in its brief:
In dismissing Dichter's appeal, this Court said:
Similar rulings were made in In re Wesselman, 29 CCPA 988, 127 F.2d 311. See also In re Rosenblatt, 118 F.2d 590, 28 CCPA 1036.
On the other hand appellants argue that there is but one issue and one reference here, therefore, no matter what criterion is used, their reasons of appeal are sufficient, emphasizing that the solicitor, in his brief, "fully discussed and applied the references." sic Appellants also rely on In re Kopplin, 146 F.2d 1014, 32 CCPA 848, and In re Howell, 298 F.2d 949, 49 CCPA 922, and cases there cited.
For many years Congress has prescribed certain criteria governing appeals to this court. Its latest expression came in 1952 when it re-enacted, virtually intact, R.S. 4912 and 4914 into what are now sections 142 and 144, respectively.
Section 142, governing notice of appeal, directs that:
"When an appeal is taken to the United States Court of Customs and Patent Appeals, the appellant shall give notice thereof to the Commissioner, and shall file in the Patent Office his reasons of appeal, specifically set forth in writing, within such time after the date of the decision appealed from, not less than sixty days, as the Commissioner appoints." (Emphasis supplied.)
Section 144 directs this court to:
(Emphasis supplied.)
Returning to appellants' argument, we find no reference in Section 142 to the contents of briefs, or any basis therein for permitting appellants to rely on their brief to cure defective reasons of appeal. The law requires that appellants shall file in the Patent Office their reasons of appeal specifically set forth in writing. As this court said in In re Wesselman, 127 F.2d 311, 29 CCPA 988:
Although two references were cited in Wesselman, there was but one issue there as here.
We are familiar with Kopplin and Howell relied on by appellants. We are also familiar with In re LePages, Inc., 312 F.2d 455, 50 CCPA 852, and with In re Arnold, 315 F.2d 951, 50 CCPA 1166, subsequently decided.3
We find nothing in the various cases cited by opposing counsel sufficiently in point with the facts here to be controlling. In all the cited cases the facts were different as they are here. It should go without saying that each case must necessarily be decided on its own facts.
Here, appellants content themselves with nothing more than broad allegations that the board erred. They fail to specifically state what error or errors the board allegedly committed on which appellants rely for reversal.
In In re Rosenblatt, 118 F.2d 590, 28 CCPA 1036, the court stated:
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...of our long-established position on this point will be found in In re LePage's Inc., 312 F.2d 455, 50 CCPA 852, and In re Gruschwitz, 320 F.2d 401, 50 CCPA 1498. See also the cases listed in the writer's dissenting opinion in the latter case. We agree with the solicitor's somewhat overempha......
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...of the statute4 for perfecting appeals to this court. Therefore, the solicitor, citing two additional patent cases, In re Gruschwitz, 320 F.2d 401, 50 CCPA 1498 (1963) and In re Dichter, 110 F.2d 664, 27 CCPA 1060 (1940), requests dismissal of this appeal. We hold this request to be without......
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