Raiche v. Foley

• Decision Date: 29 May 1939
• Docket Number: Patent Appeal No. 4272.
• Citation: 103 F.2d 920
• Parties: RAICHE v. FOLEY.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

103 F.2d 920 (1939)

RAICHE v. FOLEY.

Patent Appeal No. 4272.

Court of Customs and Patent Appeals.

May 29, 1939.

Karl Fenning, of Washington, D. C., for appellant.

Willis F. Avery, of Akron, Ohio (Hoke S. Woodruff, of Akron, Ohio, of counsel), for appellee.

Before GARRETT, Presiding Judge, and BLAND, HATFIELD, LENROOT, and JACKSON, Associate Judges.

BLAND, Associate Judge.

On January 20, 1939, the Board of Appeals of the United States Patent Office in an interference proceeding between appellant and appellee reversed the decision of the Examiner of Interferences and awarded priority of invention in the subject matter in issue in the interference between the parties to the junior party Foley, appellee herein. Appellant's limit of time for appealing from the board's decision expired March 9, 1939.

On February 28, appellant filed its notice of appeal from said decision of the board to the United States Court of Customs and Patent Appeals and also filed its reasons of appeal. The time for filing the transcript of record in said court was extended to June 1, 1939, and this appeal has not proceeded further.

On March 8, appellant requested the board to reconsider its decision in awarding priority to appellee in the interference proceeding which petition for reconsideration, on March 23, the board denied on the ground that it had no jurisdiction to consider the request for reconsideration because such request was filed after the filing of the notice of appeal to this court. On March 31, the appellant petitioned the board to reconsider and take jurisdiction to consider the request for reconsideration filed March 8, which motion, on April 13, was denied by the board.

On April 15, appellant took an appeal to this court asking this court to revise and review the decision of the board in refusing to consider the petition for rehearing.

In this court appellee moved to dismiss appellant's appeal from the board's decision refusing to reconsider its former decision upon the grounds that this court has no jurisdiction under its statutory limited authority other than to pass upon questions of priority and questions ancillary thereto, it being argued that the question raised in the instant appeal does not involve either a question of priority or a question which is ancillary to priority. Appellee alternatively moved that in event this court took jurisdiction of said appeal it be consolidated with appellant's first appeal which involves the question of priority.

Both parties filed briefs. Appellant states that this question has not been specifically decided by this court and points out that it was specifically reserved by us in Heger Products Co. v. Polk Miller Products Corp., 47 F.2d 966, 18 C.C.P.A., Patents, 1106. Appellant here relies upon the right of a tribunal appealed from to consider a petition for rehearing after notice of appeal has been filed, if said petition for rehearing is timely. The cases of Domboorajian v. Domboorajian et al., 235 Mich. 668, 209 N.W. 846; Clement v. Richards v. Meissner, 1904 C.D. 321; and Goddard v. Ordway, 101 U.S. 745, 25 L.Ed. 1040, are cited.

The appellee contends that at the time of filing the petition for rehearing involved in this controversy, appeal had been taken and was pending in this court, and for supporting authority cites Bakelite Corp. et al. v. National Aniline & Chemical Co. et al., 2 Cir., 83 F.2d 176; Jensen et al. v. Lorenz et al., 68 App.D.C. 39, 92 F.2d 992; and United States ex rel. White v. Coe, 68 App. D.C. 218, 95 F.2d 347, and argues that: It is text-book law and nothing more than common sense that "An intermediate appellate court which has rendered the decision has no power to grant a rehearing after the case has been removed to a higher court." 4 Corpus Juris Secundum, Appeal and Error, p. 2038, § 1437; 4 Corpus Juris, p. 636, Sec. 2513.

Appellee points out that in the Clement...