MARTIN, Judge.
This appeal is from the decision of the Board of Patent Interferences awarding priority of invention to the junior party Finkl1 in Interference No. 91,281 on the sole basis that the other application in the interference, serial No. 750,167, filed! July 22, 1958 by the senior party Lorenz,, is an abandoned application.
The record reveals that all the claims-of the Lorenz application numbered 1 through 6 were finally rejected solely on art by the examiner on June 19, 1959.2 The end of the six month statutory period for response fell on December 19, 1959, and this being a Saturday, Lorenz had until December 21, 1959, to make such response as the condition of the case required.
On December 7, 1959, Lorenz submitted a paper requesting that certain amendments be made in finally rejected! claims 1, 4 and 6 3 “to more succinctly define the present invention and to render the claims patentably definitive over-the cited references.” In that paper, he-also ai'gued patentability over the cited" art. Lox-enz did not file an appeal to the-Board of Appeals.
On December 23, 1959, the examiner-sent a letter to Lorenz which is reproduced in toto as follows:
“Responsive to amendment filed December 7, 1959.
“Additional reference made of' record:
Vogt 2,093,666 Sept. 21, 1927 266-34 Vac. Dig.
“The amendment dated December-7, 1959 has been considered. If and when requested, the amendment will'. [887]*887be entered for purposes of appeal only.
“For purposes of showing that the use of a closed unitary zone is an expedient of the art, Vogt is cited.”
On May 20, 1960, the examiner in a letter to Lorenz suggested a claim, “found allowable,” for purposes of interference. Thereupon Lorenz in an amendment of June 3, 1960 requested that the suggested claim 4 be entered for purposes of interference.
On August 16, 1960, the interference was declared. In the final paragraph of the letter of that date to Lorenz, the examiner stated:
“Claims 1-6 will be held subject to rejection as unpatentable over the issue in the event of an award of priority adverse to applicant.”
On March 2, 1961 the interference examiner stated that Finkl alleged no date in his preliminary statement prior to the filing date of Lorenz and gave notice that judgment on the record would be entered against Finkl unless on or before May 17, 1961, he showed good and sufficient cause why such action should not be taken.
On May 17, 1961, Finkl filed a motion to dissolve the interference contending that “there has been such informality or irregularity in declaring the same as will preclude the proper determination of the question of priority of invention.” Finkl urged that the “irregularity or informality in the declaration of the interference is based on the fact that the Lorenz application was abandoned long prior to the institution of this interference.” 5
On October 12, 1961, the examiner6 denied Finkl’s motion to dissolve stating:
“ * * * The sole judge as to what constitutes ‘appropriate action’ is the Commissioner of Patents and, through his delegated authority, the Examiner. It is obvious that the Examiner had reversed his decision as to patentability of the Lorenz application after the presentation of the amendment dated December 7, 1959; that the amendment was responsive under Rules 113, 116 and 135 and that the application was in condition for allowance.”
On November 21, 1961, Finkl petitioned the Commissioner of Patents to (a) set aside the examiner’s decision of October 12, 1961, (b) declare the Lorenz application abandoned, and (c) direct the examiner to dissolve the interference.
The Commissioner on December 7, 1961 denied Finkl’s petition stating:
“Whether or not an application involved in interference has become abandoned is a question which is ancillary to priority and can be considered in due course by the tribunals passing on that question (Bain et al. v. Hasselstrom et al, 1948 C.D. 167, [165 F.2d 436] 35 CCPA 811, 76 USPQ 302). It is ordinarily desirable that this issue be considered in that matter and no sufficient reason is found for making an exception in the present case. Accordingly, [888]*888the petition is denied without prejudice to the right of the petitioner to raise the issue of abandonment of the Lorenz application in subsequent proceedings in this interference.”
The board then on September 28, 1962 held that the Lorenz application was abandoned and awarded priority of the subject matter in issue to Finid. It stated:
“It is apparent that the amendment [of Dec. 7, 1959] was refused entry and the final rejection was not withdrawn. It is also apparent that the Examiner was not impressed with the proposed amendment since his action indicated that changing ‘a container’ which necessarily operated under vacuum conditions to ‘closed unitary zone’ presented no patentable change . The Vogt patent accordingly was cited as showing that the proposed change represented only an ‘expedient of the art.’
“It is clear that for the response to be such as the condition of the case required, the amendment should be such as to place the case in condition for allowance or better condition for appeal and if the latter, the filing of an appeal. These requisites should have been accomplished before the statutory period expired. Lorenz met neither of these requirements. It would seem in view of the plain requirements of Rule 116 that ordinary prudence would have dictated the filing of an appeal not later than December 21, 1959, if Lorenz intended to save the case from abandonment. In this connection it is to be noted that Rule 116(a) states • (with respect to amendments placing the case in better form for consideration on appeal):
“ * * * the admission of any such amendment or its refusal, and any proceedings relative thereto, shall not operate to relieve the application from its condition as subject to appeal or to save it from abandonment under rule 135.
* * » * *
“It is true, of course, that the Examiner could reverse his opinion on patentability and withdraw the final rejection if the amendment of December 7th had placed the case in condition for allowance. The Examiner’s action of December 23rd plainly shows he took no such action and the proposed amendment was not entered. Since no appeal was taken, it is believed manifest that Lorenz made no response within the statutory period such as the condition of the case required. * * * ”
Referring to the examiner’s letter of May 20, 1960, the board stated:
“ * * * It is true that the Examiner found allowable matter in the Lorenz application five months later when he suggested the present count on May 20, 1960, but we cannot agree that even then the case was in condition for allowance, since the case still contained six claims under rejection without appropriate action by Lorenz.”
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MARTIN, Judge.
This appeal is from the decision of the Board of Patent Interferences awarding priority of invention to the junior party Finkl1 in Interference No. 91,281 on the sole basis that the other application in the interference, serial No. 750,167, filed! July 22, 1958 by the senior party Lorenz,, is an abandoned application.
The record reveals that all the claims-of the Lorenz application numbered 1 through 6 were finally rejected solely on art by the examiner on June 19, 1959.2 The end of the six month statutory period for response fell on December 19, 1959, and this being a Saturday, Lorenz had until December 21, 1959, to make such response as the condition of the case required.
On December 7, 1959, Lorenz submitted a paper requesting that certain amendments be made in finally rejected! claims 1, 4 and 6 3 “to more succinctly define the present invention and to render the claims patentably definitive over-the cited references.” In that paper, he-also ai'gued patentability over the cited" art. Lox-enz did not file an appeal to the-Board of Appeals.
On December 23, 1959, the examiner-sent a letter to Lorenz which is reproduced in toto as follows:
“Responsive to amendment filed December 7, 1959.
“Additional reference made of' record:
Vogt 2,093,666 Sept. 21, 1927 266-34 Vac. Dig.
“The amendment dated December-7, 1959 has been considered. If and when requested, the amendment will'. [887]*887be entered for purposes of appeal only.
“For purposes of showing that the use of a closed unitary zone is an expedient of the art, Vogt is cited.”
On May 20, 1960, the examiner in a letter to Lorenz suggested a claim, “found allowable,” for purposes of interference. Thereupon Lorenz in an amendment of June 3, 1960 requested that the suggested claim 4 be entered for purposes of interference.
On August 16, 1960, the interference was declared. In the final paragraph of the letter of that date to Lorenz, the examiner stated:
“Claims 1-6 will be held subject to rejection as unpatentable over the issue in the event of an award of priority adverse to applicant.”
On March 2, 1961 the interference examiner stated that Finkl alleged no date in his preliminary statement prior to the filing date of Lorenz and gave notice that judgment on the record would be entered against Finkl unless on or before May 17, 1961, he showed good and sufficient cause why such action should not be taken.
On May 17, 1961, Finkl filed a motion to dissolve the interference contending that “there has been such informality or irregularity in declaring the same as will preclude the proper determination of the question of priority of invention.” Finkl urged that the “irregularity or informality in the declaration of the interference is based on the fact that the Lorenz application was abandoned long prior to the institution of this interference.” 5
On October 12, 1961, the examiner6 denied Finkl’s motion to dissolve stating:
“ * * * The sole judge as to what constitutes ‘appropriate action’ is the Commissioner of Patents and, through his delegated authority, the Examiner. It is obvious that the Examiner had reversed his decision as to patentability of the Lorenz application after the presentation of the amendment dated December 7, 1959; that the amendment was responsive under Rules 113, 116 and 135 and that the application was in condition for allowance.”
On November 21, 1961, Finkl petitioned the Commissioner of Patents to (a) set aside the examiner’s decision of October 12, 1961, (b) declare the Lorenz application abandoned, and (c) direct the examiner to dissolve the interference.
The Commissioner on December 7, 1961 denied Finkl’s petition stating:
“Whether or not an application involved in interference has become abandoned is a question which is ancillary to priority and can be considered in due course by the tribunals passing on that question (Bain et al. v. Hasselstrom et al, 1948 C.D. 167, [165 F.2d 436] 35 CCPA 811, 76 USPQ 302). It is ordinarily desirable that this issue be considered in that matter and no sufficient reason is found for making an exception in the present case. Accordingly, [888]*888the petition is denied without prejudice to the right of the petitioner to raise the issue of abandonment of the Lorenz application in subsequent proceedings in this interference.”
The board then on September 28, 1962 held that the Lorenz application was abandoned and awarded priority of the subject matter in issue to Finid. It stated:
“It is apparent that the amendment [of Dec. 7, 1959] was refused entry and the final rejection was not withdrawn. It is also apparent that the Examiner was not impressed with the proposed amendment since his action indicated that changing ‘a container’ which necessarily operated under vacuum conditions to ‘closed unitary zone’ presented no patentable change . The Vogt patent accordingly was cited as showing that the proposed change represented only an ‘expedient of the art.’
“It is clear that for the response to be such as the condition of the case required, the amendment should be such as to place the case in condition for allowance or better condition for appeal and if the latter, the filing of an appeal. These requisites should have been accomplished before the statutory period expired. Lorenz met neither of these requirements. It would seem in view of the plain requirements of Rule 116 that ordinary prudence would have dictated the filing of an appeal not later than December 21, 1959, if Lorenz intended to save the case from abandonment. In this connection it is to be noted that Rule 116(a) states • (with respect to amendments placing the case in better form for consideration on appeal):
“ * * * the admission of any such amendment or its refusal, and any proceedings relative thereto, shall not operate to relieve the application from its condition as subject to appeal or to save it from abandonment under rule 135.
* * » * *
“It is true, of course, that the Examiner could reverse his opinion on patentability and withdraw the final rejection if the amendment of December 7th had placed the case in condition for allowance. The Examiner’s action of December 23rd plainly shows he took no such action and the proposed amendment was not entered. Since no appeal was taken, it is believed manifest that Lorenz made no response within the statutory period such as the condition of the case required. * * * ”
Referring to the examiner’s letter of May 20, 1960, the board stated:
“ * * * It is true that the Examiner found allowable matter in the Lorenz application five months later when he suggested the present count on May 20, 1960, but we cannot agree that even then the case was in condition for allowance, since the case still contained six claims under rejection without appropriate action by Lorenz.”
The board further stated that the “subsequent finding of allowable subject matter came too late since the Examiner has no power to in effect revive an abandoned application.”
Referring to a contention by Lorenz that Finkl is in effect attacking an action or ruling by the Commissioner, the board found it without merit stating:
“ * * * The Examiner has never held in the involved Lorenz application that the proposed amendment of December 7th was an ‘appropriate action’. Under the circumstances there is nothing before us for review in this regard and the contention that we have no authority to review the action of the Commissioner needs no comment other than to say we well recognize we have no such authority. This is not to say that we cannot review the Examiner’s action since his action manifestly was not the Commissioner’s action.”
Appellant urges that the December 23, 1959 action could and did validly with[889]*889draw the finality of the rejection of the Lorenz application. Appellant contends that even if the December 23, 1959 action did not withdraw the finality of the rejection, it did not irreversibly spell out abandonment of the Lorenz application, and the May 20, 1960 action could and did validly withdraw the finality of the rejection. Appellant further argues that the Board of Patent Interferences did not have the right to review the examiner’s actions.
Appellee, on the other hand, argues that abandonment of an application is ancillary to priority and that the Lorenz application became abandoned December 21, 1959, by operation of law for lack of a complete and proper response to the final rejection of June 19, 1959. The ap-pellee contends that the examiner has no discretionary power to waive the requirements of the rules of practice.
The issue before us is whether or not the application of Lorenz is an abandoned application. The determination of that issue is governed by the Patent Act of 1952.
According to that Act, failure of an applicant to “prosecute” an application within six months after any action therein, of which notice has been given or mailed to the applicant, results in the application becoming abandoned.7 An applicant for a patent, any of whose claims has been twice rejected, may appeal from the decision of the examiner to the board.8 Thus an applicant need only “prosecute” an application within six months after any action by the Patent Office on the application or he may appeal to the board from the decision of examiner after any of the claims had been twice rejected. We think it apparent, however, that Congress did not intend that an applicant should be able to “prosecute” his application indefinitely before the Patent Office. An orderly administrative process demands an end to prosecution.
Rather, Congress authorized the Commissioner to establish rules or regulations not inconsistent with law for the conduct of proceedings in the Patent Office.9 These rules include:
Rule 135 (in part):
135. “Abandonment for failure to respond within time limit, (a) If an applicant fails to prosecute his application within six months after the date when the last official notice of any action by the Office was mailed to him, * * * the application will become abandoned.
“(b) Prosecution of an application to save it from abandonment must include such complete and proper action as the condition of the case may require. The admission of an amendment not responsive to the last official action, or refusal to admit the [890]*890same, and any proceedings relative thereto, shall not operate to save the application from abandonment.”
Rule 113 (in part):
113. “Final rejection or action, (a) On the second or any subsequent examination or consideration, the rejection or other action may be made final, whereupon applicant’s response is limited to appeal in the case of rejection of any claim (§ 1.191), or to amendment as specified in § 1.116. * * * Response to a final rejection or action must include cancellation of, or appeal from the rejection of, each claim so rejected and, if any claim stands allowed, compliance with any requirement or objection as to form.”
Rule 116 (in part):
116. “Amendments after final action. (a) After final rejection or action (§ 1.113) amendments may be made cancelling claims or complying with any requirements of form which has been made, and amendments presenting rejected claims in better form for consideration on appeal may be admitted; but the admission of any such amendment or its refusal, and any proceedings relative thereto, shall not operate to relieve the application from its condition as subject to appeal or to save it from abandonment under § 1.185.” [Emphasis ours.)
Applying the above rules to the factual situation before us, the action of the examiner on June 19, 1959 on the Lorenz application was a final action. Although an appeal was due on December 21, 1959 Lorenz did not file an appeal. As of December 21, 1959, the end of the statutory period for prosecuting the application, we think the record shows that Lorenz had not filed an amendment which was a “complete and proper action as the condition of the case may require” to save the application from abandonment. The claims stood finally rejected solely on art. The proposed amendment filed December 7, 1959 was not accepted as overcoming the art rejection by December 21, 1959 as is evident from the examiner’s action of December 23, 1959, which indicated that the December 7 amendment, would be entered if and when requested for purposes of appeal only. If the examiner had regarded the amendment as a complete and proper response to the final rejection, he necessarily would have found the application allowable and there would have been no reason for the examiner to refer to an appeal.10
Moreover, we think it clear from the December 7 amendment itself that Lorenz did not necessarily anticipate this amendment to be a complete and proper response to the examiner’s final action of June 19. In his remarks accompanying that amendment Lorenz specifically recognized that an appeal might be necessary, using the following language:
“In view of the foregoing reconsideration of the rejection and allowance of the claims as amended is respectfully requested. In any event entry of the instant amendment is urged as it is believed to place the application in allowable condition or at least in better condition on appeal.” [Emphasis ours.)
Accordingly, since the clear import of the examiner’s letter of December 23, 1959 was that the proposed amendment of December 7, 1959, did not constitute a complete and proper response to the examiner’s final action of June 19, 1959,. and since appellant did not file an appeal within the six month statutory time period, we agree with the board that the Lorenz application is abandoned. As a result Lorenz is not entitled to prevail in the interference.
[891]*891We do not consider the examiner’s letter suggesting a claim for interference on May 20, 1960 and his subse-quent actions to have the effect of saving Lorenz’s application from abandonment. Section 13311 permits revival of an abandoned application when “it be shown to the satisfaction of the Commissioner,” that delay in prosecuting was unavoidable and no such showing was made. Authority for so reviving an application has not been delegated to the examiner •but is retained by the Commissioner under Patent Office Rule 137.12
We further do not agree with Lorenz that the board lacks the right to •review the examiner’s actions. The question of whether an application in interference is abandoned is ancillary to priority. That question having been properly •raised by Pinkl, the board had the responsibility of deciding it. Bain v. Hasselstrom, 165 F.2d 436, 35 CCPA 811.
For the foregoing reasons, the decision •of the board is affirmed.
Affirmed.