Leighton v. Coe, 7963.

• Decision Date: 02 September 1942
• Docket Number: No. 7963.,7963.
• Citation: 130 F.2d 841
• Parties: LEIGHTON v. COE, Commissioner of Patents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

130 F.2d 841 (1942)

LEIGHTON v. COE, Commissioner of Patents.

No. 7963.

United States Court of Appeals for the District of Columbia.

Decided September 2, 1942.

Mr. Nelson J. Jewett, of Washington, D. C., by appointment of the court, for appellant.

Mr. W. W. Cochran, Solicitor, United States Patent Office, of Washington, D. C., for appellee.

Before STEPHENS, VINSON and RUTLEDGE, Associate Justices.

STEPHENS, Associate Justice.

This is an appeal from an order of the District Court of the United States for the District of Columbia dismissing a complaint of the appellant Albert Leighton. The complaint, filed under Rev.Stat. § 4915 (1878), 35 U.S.C.A. § 63, sought an order authorizing the Commissioner of Patents, the appellee herein, to reissue U. S. Patent No. 1986508 of which the appellant was alleged to be the patentee and owner.

It appears from the record in the Patent Office, which was before the trial court and is before this court on appeal, and from the pleadings, that after the final rejection by the acting examiner of the appellant's application for reissue on March 25, 1939, the appellant took no appeal to the Board of Appeals; he attempted in propria persona an informal appeal by letters written to the Patent Commissioner but did not pay the required fee. Rev.Stat. § 4909 (1878), 35 U.S.C.A. § 57, provides that every applicant for a patent or for the reissue of a patent, any of the claims of which have been twice rejected, may appeal from the decision of the primary examiner to the Board of Appeals, "having once paid the fee for such appeal." Rev.Stat. § 4934 (1878), 35 U.S.C.A. § 78, fixes a fee of $15. The failure to pay the fee was it appears due to the appellant's poverty. The patent statutes contain no provisions for proceedings in forma pauperis.

After the filing of the appellant's complaint in the District Court the Commissioner moved to dismiss the action upon the ground that under § 4915 the court lacked jurisdiction of the subject matter and upon the further ground that the complaint failed to state a claim upon which the relief sought could be granted. This motion was overruled without prejudice. It was not formally renewed upon the calling of the case for trial but nevertheless stood of record. The proceedings in the trial court were in forma pauperis. Application was made by the appellant for the appointment of counsel to represent him. The trial court, apparently in the exercise of its discretion under the in forma pauperis statute, which provides that the court "may request any attorney of the court to represent such poor person, if it deems the cause worthy of trial . . ." (27 Stat. 252 (1892), 28 U.S.C.A. § 835), made no appointment of counsel. Before the case was called the appellant had informed the court through letters written and made of record that because of his poverty he would not be able to attend any trial in Washington unless transportation expenses were allowed to him. The court made no such allowance. It had no power under the statutes to do so. When the case was called the appellant did not appear. He had, however, mailed to the clerk and there had been placed of record in the files of the case a paper entitled "Pltfs. Statement of...