Eckey v. Watson, 14964.
| Decision Date | 25 June 1959 |
| Docket Number | No. 14964.,14964. |
| Citation | 106 US App. DC 16,268 F.2d 891 |
| Parties | Eddy W. ECKEY, Appellant, v. Robert C. WATSON, Commissioner of Patents, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Edward F. McKie, Jr., Washington, D. C., with whom Messrs. Edward S. Irons and Harold J. Birch, Washington, D. C., were on the brief, for appellant.
Mr. Arthur H. Behrens, Attorney, United States Patent Office, with whom Mr. Clarence W. Moore, Solicitor, United States Patent Office, was on the brief, for appellee.
Before WILBUR K. MILLER, FAHY and WASHINGTON, Circuit Judges.
The question here is whether the Commissioner of Patents has the authority to extend the sixty-day period, fixed by Rule 304 of the Rules of Practice of the Patent Office, 37 C.F.R. § 1.304 (Supp. 1959), 35 U.S.C.Appendix,1 for the filing of suits in the District Court under Section 145 of Title 35, U.S.Code. Rule 304 was adopted pursuant to Section 145, which authorizes the Commissioner to "appoint" the time within which suits under that section may be brought.2
Plaintiff-appellant's complaint under Section 145 was filed in the District Court one day late, i. e., on the sixty-first day after the decision of the Board of Appeals. When the Commissioner filed an answer raising the point, plaintiff petitioned the Commissioner for an extension of time within which to file suit. The Commissioner ruled that he was without authority to grant any such extension. Plaintiff then filed a supplemental complaint asking the District Court to declare that the Commissioner has such authority, which he may exercise in his discretion. This was denied by the District Court, which granted the Commissioner's motion for summary judgment, and dismissed the complaint. This appeal followed.
Rule 183 of the Patent Office Rules provides:
"In any extraordinary situation, when justice requires, any requirement of these rules which is not a requirement of the statutes may be suspended or waived by the Commissioner in person on petition of the interested party, subject to such other requirements as may be imposed." 37 C.F.R. § 1.183 (1949).
We think the sixty-day provision in Section 304 of the Rules, made pursuant to the authority given the Commissioner by Section 145 to "appoint" the time for bringing suit, is not a "requirement of the statutes" within the meaning of Rule 183. Accordingly, under the Rules as presently drawn, the Commissioner may suspend or waive the sixty-day limit of Rule 304.
The judgment of the District Court will be reversed and the cause remanded. On remand, the District Court shall render a declaratory judgment decreeing (1) that the Commissioner has power in his discretion to permit a late filing of the...
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Urologix, Inc. v. Prostalund Ab, 02-C-0318.
...(Comm'r of Patents & Trademarks 1987) (refusing to grant a petition for a waiver because the applicant had not met the requirements); Eckey, 268 F.2d at 892 (remanding to Commissioner after applicant had filed a petition for a waiver with the PTO). Urologix cites to Exxon Corp. v. Phillips ......
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Graves, In re, 95-1199
...situation, the Commissioner may suspend or waive any requirement of the rules not required by statute); Eckey v. Watson, 268 F.2d 891, 892, 122 USPQ 5, 5 (D.C.Cir.1959) (per curiam) (It is a proper exercise of the Commissioner's power to suspend or waive the time limit of Sec. 1.304.); In r......
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Safety-Kleen Corp. v. Dresser Industries, Inc.
...of the statute may be suspended or waived by the Commissioner in appropriate circumstances in inter partes cases. Eckey v. Watson, 106 U.S.App.D.C. 16, 268 F.2d 891, (1959); Commonwealth of Australia v. Radio Corporation of America, 399 F.2d 807 (2d Cir. We agree with Dresser that administr......
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Loshbough v. Allen, Patent Appeal No. 7898
...as to both the Commissioner and board's actions thereunder. This discretion, of course, must be exercised, Eckey v. Watson, 106 U.S.App.D.C. 16, 268 F.2d 891, (1959), and the orderly procedure vitally necessary both here and in the Patent Office should not be ignored. We may "require such f......