Bluthenthal & Bickart v. Bigbie Bros. & Co.

33 App. D.C. 209, 1909 U.S. App. LEXIS 6051

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 6, 1909
• Docket: No. 563
• Status: Published

Opinion

Mr. Chief Justice Shepard

delivered the opinion of the Court:

The Commissioner did not err in sustaining the plea of former adjudication and dismissing the opposition.

There must be an end of litigation in the Patent Office as well as elsewhere, and it is well settled that the doctrine of res judicata applies to proceedings therein in .the same manner as in the courts. Blackford v. Wilder, 28 App. D. C. 535, 540; Horine v. Wende, 29 App. D. C. 415; Re Edison, 30 App. D. C. 321; United States ex rel. Newcomb Motor Co. v. Moore, 30 App. D. C. 464, 477; Carroll v. Hallwood, 31 App. D. C. 165.

The parties to the opposition being the same as in the interference proceeding, and the subject-matter being the same, the judgment in the former is conclusive as to every question that was or might have been presented and determined therein.

The first ground of the opposition was substantially presented and determined in the interference proceeding. Bluthenthal v. Bigbie, 30 App. D. C. 118. The second ground, as to fraudulent use of the trademark by Bigbie Brothers & Company could have been determined in the interference proceeding also, though it was not actually presented. Schuster Co. v. Muller, 28 App. D. C. 409, 414; Levy v. Uri, 31 App. D. C. 441, 443.

It is too late to raise that question now by a mere change in the form of the proceeding from interference to opposition. The decision will be affirmed. It is so ordered, and the clerk will certify this decision to the Commissioner of Patents, as the law requires. Affirmed.