JOHNSON v. MUESER 212 U.S. 283 (1909)

[212 U.S. 283, 284]   Messrs. Melville Church and James A. Carr for plaintiff in error.

Messrs. Stephen J. Cox and William Raimond Baird for defendant in error.

Mr. Chief Justice Fuller delivered the opinion of the court:

This was a proceeding of interference in which the examiner of interferences awarded priority to Mueser. This decision was in turn affirmed by the examiners-in-chief and by the Commissioner. From the decision of the Commissioner an appeal was taken to the court of appeals of the District of Columbia, and that court affirmed the decision of the Commissioner of Patents, and directed that its own decision be certified to the Commissioner of Patents, as required by law. The court held that, in such a proceeding, it would not review the action of the Patent Office in deciding that the issue was a patentable one, but would confine its consideration to the question of priority alone. 29 App. D. C. 61. And in the course of its opinion the court said:

'It must be borne in mind that the final judgment of this court, entitling a claimant to a patent, in either an ex parte or an interference proceeding, is not conclusive of either patentability or priority. The patent, when issued, may be attacked in the courts by parties whose interests may be affected by the monopoly claimed thereunder; and the defeated party has another remedy by proceeding in a court of equity, as provided in 4915, Rev. Stat. (U. S. Comp. Stat. 1901, p. 3392).'

We think our ruling in Frasch v. Moore, 211 U.S. 1 , 53 L. ed. --, 29 Sup. Ct. Rep. 6, is applicable, and that this writ of error must be disposed of accordingly. The application for certiorari must take the same course.

Writ of error dismissed.

Certiorari denied.