Sikora v. Brenner, No. 20634.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtWILBUR K. MILLER, Senior Circuit , and FAHY and LEVENTHAL, Circuit
Citation126 US App. DC 357,379 F.2d 134
PartiesJozef SIKORA, Appellant, v. Edward J. BRENNER, Commissioner of Patents, Appellee.
Decision Date08 May 1967
Docket NumberNo. 20634.

126 US App. DC 357, 379 F.2d 134 (1967)

Jozef SIKORA, Appellant,
v.
Edward J. BRENNER, Commissioner of Patents, Appellee.

No. 20634.

United States Court of Appeals District of Columbia Circuit.

Argued April 12, 1967.

Decided May 8, 1967.

As Amended June 2, 1967.


379 F.2d 135

Mr. Jozef Sikora, appellant, pro se.

Mr. Raymond E. Martin, Atty., United States Patent Office, with whom Mr. Joseph Schimmel, Sol., United States Patent Office, was on the brief, for appellee.

Before WILBUR K. MILLER, Senior Circuit Judge, and FAHY and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge.

Appellant applied for a patent for a chemical process for preparing linear polyamides (a chemical designation that includes nylon). On June 12, 1964, after the critical claims, 11-17, were finally rejected by the examiner in the Patent Office, appellant filed an appeal in the Board of Appeals. Thereafter he filed several amendments to the patent claims. The examiner accepted some amendments but refused to enter one filed on November 25, 1964, which endeavored to restrict claims 11 through 17. This was filed after the appeal was lodged, according to appellant, in order to reply to new arguments of the examiner. On petition to review appellee held that the examiner "has not acted arbitrarily or in a clearly erroneous manner in refusing to enter amendments after final rejection."

The Board of Appeals did not consider the proposed amendment, being bound by the action of the Commissioner. It sustained the action of the examiner holding that the unamended claims were not patentable.

Appellant, previously represented by counsel, filed an action pro se in the District Court. His pleading, captioned Complaint for Letters Patent, alleged that it was filed under 35 U.S.C. § 145 (1964) and the court had jurisdiction under the patent laws. The averments, however, made clear that appellant was complaining of the failure to permit the amendment, which meant, as he put it, that his "main point" was not considered by the Board of Appeals. The prayer sought a judgment concerning the sufficiency of the Examiner's reasons for not allowing the amendment.

The District Court entered judgment dismissing the complaint. Its opinion, findings of fact and conclusions of law, were all based on the unpatentability of the claims in their unamended state.1 The District Court made no findings or

379 F.2d 136
comments on the validity vel non of appellee's refusal to permit the amendment of appellant's patent claims. Appellee argues that the District Court lacked jurisdiction to consider the validity of appellee's refusal to permit amendment because under 35 U.S.C. § 145 an action may be brought only by an applicant "dissatisfied with the decision of the Board of Appeals" and the cognizable subject matter is restricted in scope to a claim of entitlement to a patent for the invention "specified in * * * claims involved in the decision of the Board of Appeals * * *."

In our view the District Court had jurisdiction to consider the objection in the complaint, viewed liberally as a pro se pleading, that the Patent Office had acted arbitrarily in refusing to permit the requested amendment of the patent claim. We need not consider whether the objection is within the compass of 35 U.S.C. § 145.2 In any event, the official action may be protested and reviewed by the District Court in an action brought under the statutory provisions now codified as 5 U.S.C. §§ 702-704.3 The jurisdictional allegations of appellant's complaint satisfied Rule 8(a) of the Federal Rules of Civil Procedure which requires that the pleading contain "a short and plain statement of the...

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19 practice notes
  • Akron Board of Ed. v. State Board of Ed. of Ohio, No. 72-2075.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 15, 1974
    ...thereunder if necessary. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946); Sikora v. Brenner, 126 U.S.App.D.C. 357, 379 F.2d 134 supra. That it did not do so is clearly attributable to its belief that in any event the plaintiffs lacked standing." (App. brief pp. 1 Unlike City o......
  • Wyden v. Commissioner of Patents and Trademarks, No. 86-554
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • November 25, 1986
    ...Co. v. Ladd, 225 F.Supp. 709, 140 USPQ 364 (D.D.C.1964). 6 See, e.g., Prohl v. Brenner, 157 USPQ 609 (D.C.Cir.1968); Sikora v. Brenner, 379 F.2d 134, 153 USPQ 585 (D.C.Cir.1967); Edgerton v. Kingsland, 168 F.2d 128, 75 USPQ 313 (D.C.Cir.1947), cert. denied, 333 U.S. 874, 68 S.Ct. 903, 92 L.......
  • U.S. v. American Tel. & Tel. Co., No. 76-1712
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 30, 1976
    ...if the factual allegations fairly support an alternative basis in a more proper or simple manner. Sikora v. Brenner, 126 U.S.App.D.C. 357, 379 F.2d 134 (1967); New York State Waterways Association v. Diamond, 469 F.2d 419 (2d Cir. 1972). See Wright & Miller, Federal Practice and Procedure: ......
  • State Highway Commission of Missouri v. Volpe, No. 72-1512.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 2, 1973
    ...of the Federal-Aid Highway Act and the amount in controversy obviously exceeded $10,000. In Sikora v. Brenner, 126 U.S.App.D.C. 357, 379 F.2d 134 (1967), the plaintiff alleged jurisdiction under 35 U.S.C. § 145. The district court dismissed for lack of subject matter jurisdiction. However, ......
  • Request a trial to view additional results
19 cases
  • Akron Board of Ed. v. State Board of Ed. of Ohio, No. 72-2075.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 15, 1974
    ...thereunder if necessary. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946); Sikora v. Brenner, 126 U.S.App.D.C. 357, 379 F.2d 134 supra. That it did not do so is clearly attributable to its belief that in any event the plaintiffs lacked standing." (App. brief pp. 1 Unlike City o......
  • Wyden v. Commissioner of Patents and Trademarks, No. 86-554
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • November 25, 1986
    ...Co. v. Ladd, 225 F.Supp. 709, 140 USPQ 364 (D.D.C.1964). 6 See, e.g., Prohl v. Brenner, 157 USPQ 609 (D.C.Cir.1968); Sikora v. Brenner, 379 F.2d 134, 153 USPQ 585 (D.C.Cir.1967); Edgerton v. Kingsland, 168 F.2d 128, 75 USPQ 313 (D.C.Cir.1947), cert. denied, 333 U.S. 874, 68 S.Ct. 903, 92 L.......
  • U.S. v. American Tel. & Tel. Co., No. 76-1712
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 30, 1976
    ...if the factual allegations fairly support an alternative basis in a more proper or simple manner. Sikora v. Brenner, 126 U.S.App.D.C. 357, 379 F.2d 134 (1967); New York State Waterways Association v. Diamond, 469 F.2d 419 (2d Cir. 1972). See Wright & Miller, Federal Practice and Procedure: ......
  • State Highway Commission of Missouri v. Volpe, No. 72-1512.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 2, 1973
    ...of the Federal-Aid Highway Act and the amount in controversy obviously exceeded $10,000. In Sikora v. Brenner, 126 U.S.App.D.C. 357, 379 F.2d 134 (1967), the plaintiff alleged jurisdiction under 35 U.S.C. § 145. The district court dismissed for lack of subject matter jurisdiction. However, ......
  • Request a trial to view additional results

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