Seamless Rubber Co. v. Ethicon, Inc, 268 F.2d 231 (C.C.P.A. 1959)

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U.S. Court of Customs and Patent Appeals (1909-1982) - 268 F.2d 231 (C.C.P.A. 1959) July 7, 1959

Richard A. Mahar and Albert H. Kirchner, Washington, D. C., for appellant.

Francis C. Browne, Washington, D. C., for appellee.


Appellee's motion to dismiss this appeal raises the question as to the meaning and effect of Sec. 21 of the Trade-Mark Act of 1946, 15 U.S.C.A. § 1071, providing, inter alia, for appeals to this court. This is a trademark opposition instituted by appellee which was dismissed January 31, 1958, by the Examiner of Trade-Mark Interferences upon appellant's (applicant's) motion. From this dismissal, appellee-opposer appealed to the Commissioner of Patents on January 15, 1959. Assistant Commissioner Leeds reversed the decision of the Examiner of Interferences and ordered the case to proceed to trial. Appellant has appealed from this ruling.

The order of the Assistant Commissioner is an interlocutory order, and, as such, is not appealable. Master, Wardens, Searchers, Assistants and Commonalty of Co. of Cutlers in Hallamshire in York County v. Sheffield Steel Corp., 215 F.2d 285, 42 CCPA 726, and cases there cited.

There is nothing in Sec. 21 of the Trade-Mark Act of 1946 which permits appeals from interlocutory orders.

Appellee's motion to dismiss the appeal is granted, and the appeal is dismissed.

Appeal dismissed.

WORLEY, C. J., and O'CONNELL, J., did not participate because of illness.