John W. Anderson and Productive Inventions, Inc., a Corporation of Indiana, Appellants, v. Robert C. Watson, Commissioner of Patents, Appellee, 254 F.2d 956 (D.C. Cir. 1958)

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U.S. Court of Appeals for the District of Columbia Circuit - 254 F.2d 956 (D.C. Cir. 1958)

Argued April 10, 1958
Decided April 24, 1958

Mr. Charles F. Meroni, Chicago, Ill., for appellants. Mr. William A. Smith, Jr., Washington, D. C., also entered an appearance for appellants.

Mr. Clarence W. Moore, Solicitor, U. S. Patent Office, for appellee.

Before DANAHER, BASTIAN and BURGER, Circuit Judges.


Appellants filed suit against the Commissioner of Patents for a writ of mandamus to require the Commissioner to set down for hearing appellant Anderson's motions for judgment on the record and to render decisions thereon prior to the taking of testimony in certain pending interference proceedings, the motions being based on a claim of res judicata. The District Court granted the Commissioner's motion to dismiss and this appeal followed.

In disposing of the motion to dismiss, the District Court (Holtzoff, J.) said:

"The question whether the motion for judgment should be passed upon when made during the pendency of the proceedings, or deferred until its final conclusion, is a matter of discretion with the Commissioner, which may not be reviewed by the courts. If final disposition of the proceedings results unfavorably to the plaintiff, the plaintiff will still have a right to review the question either by an appeal from the final decision of the Patent Office to the Court of Customs and Patent Appeals, or by an action de novo in this court."

We agree.