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

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtE. L. Reynolds, Solicitor, Washington, D. C., for defendant
Citation92 USPQ 169,101 F. Supp. 579
Docket NumberCiv. A. No. 4905-51.
Decision Date09 January 1952
PartiesCUPPLES v. MARZALL.

101 F. Supp. 579
92 USPQ 169

CUPPLES
v.
MARZALL.

Civ. A. No. 4905-51.

United States District Court District of Columbia.

January 9, 1952.


101 F. Supp. 580

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

101 F. Supp. 581
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...

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11 practice notes
  • Practice and procedure: Patent and trademark cases rules of practice; representation of others before Patent and Trademark Office,
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...and without discrimination in the grading of the plaintiff's examination, pursuant to a uniform standard.'' See Cupples v. Marzall, 101 F.Supp. 579, 583 (D.D.C. 1952). The Office uses a set of model answers in grading examination answers. The use of Office Model Answers to grade the examina......
  • Part II
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...and without discrimination in the grading of the plaintiff's examination, pursuant to a uniform standard.'' See Cupples v. Marzall, 101 F.Supp. 579, 583 (D.D.C. 1952). The Office uses a set of model answers in grading examination answers. The use of Office Model Answers to grade the examina......
  • Franchi v. Manbeck, No. 92-1085
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • August 12, 1992
    ...526, 526-27 (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 substantia......
  • 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......
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9 cases
  • Franchi v. Manbeck, No. 92-1085
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • August 12, 1992
    ...526, 526-27 (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 substantia......
  • 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......
  • Peterson, Application of, No. 1066
    • United States
    • Supreme Court of Alaska (US)
    • July 17, 1972
    ...In re Chachas' Petition, 78 Nev. 102, 369 P.2d 455 (1962); In re Myles, 64 Nev. 217, 180 P.2d 99 (Nev. 1947). 20 Cupples v. Marzall, 101 F.Supp. 579 (D.D.C.1952). The case differs greatly from the instant case in that it involved an examination for practice before an administrative office, ......
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