Roger & Gallet, Appellant, v. Janmarie, Inc., Appellee, 248 F.2d 464 (C.C.P.A. 1957)

On June 10, 1957, in an opinion reported at 245 F.2d 505, 44 C.C.P.A., Patents, ___, this court reversed a decision of the Assistant Commissioner of Patents (opinion reported at 109 U.S.P.Q. 16) and remanded the case to the Patent Office for further proceedings not inconsistent with our opinion.

On August 6, 1957, the Assistant Commissioner rendered a decision, reported at 114 U.S.P.Q. 406. A petition for reconsideration was denied on September 6, 1957.

Counsel for appellant then moved in this court, on October 3, 1957,

1) to vacate the said decision of Assistant Commissioner Leeds dated August 6, 1957, because it is not within the scope of actions contemplated or allowed under the remand of this Court for further proceedings not inconsistent with its said decision of June 10, 1957; and

2) to direct the reinstatement of the original decision of the Examiner herein sustaining the opposition as an action consistent with its aforesaid decision of June 10, 1957; and

3) to grant opposer ten days within which to reply to affidavits and memoranda, if any, filed in opposition of this motion; and

4) for such other and further relief as to the Court may seem just and proper.

Assuming without deciding that we have jurisdiction (in the absence of an appeal from the decision sought to be vacated) or authority to vacate a decision of the Commissioner, since we find nothing in the decision of the Commissioner inconsistent with our opinion, the motion is denied.

Denied.