SHOEMAKER v. ROBERTSON, Commissioner of Patents

SHOEMAKER v. ROBERTSON, Commissioner of Patents. No. 5209. Court of Appeals of the District of Columbia. Argued Nov. 4, 1931. Decided Nov. 30, 1931. Wm. D. Shoemaker and John Boyle, Jr., both of Washington, D. C., for appellant. T. A. Hostetler, of Washington, D. C., for appellee. Before MARTIN, Chief Justice, and ROBB, YAN ÓRSDEL, HITZ, and GRONER, Associate Justices. [MAJORITY — ROBB, Associate Justice.] ROBB, Associate Justice. Appeal from a decree in the Supreme Court of the District dismissing appellant’s bill (assumed to be authorized by section 4915, R. S. [35 USCA § 63]) against the Commissioner of Patents for the issuance of a patent to appellant. On March 28, 1929, appellant filed with the Patent Office what he contended was a proper application for a patent. The Patent Office held that the application did not conform to the rules of the office, in that it had been signed by the applicant in but one place instead of in three places, and therefore refused to receive it as an application. Thereupon the applicant filed his bill. In Butterworth v. United States ex rel. Hoe, 112 U. S. 50, 68, 5 S. Ct. 25, 28 L. Ed. 656, it was ruled that the remedy by bill in equity under section 4915, R. S. (35 USCA • § 63), applies only when the Commissioner decides to reject an application for a patent on the ground that the applicant is not on the merits entitled to it. In the present ease the Commissioner did not reject the application on the merits; he refused to consider it at all. As to the proper remedy, if any, see Steinmetz v. Allen, 192 U. S. 543, 24 S.Ct. 416, 48 L. Ed. 555. Decree affirmed. Affirmed.