Ex Parte Frasch

Supreme Court

Ex Parte Frasch

192 U.S. 566, 24 S. Ct. 424, 48 L. Ed. 564, 1904 U.S. LEXIS 971

CourtSupreme Court of the United States

DecidedFebruary 23, 1904

Docket13, Original

StatusPublished

Cited by6 cases

This text of 192 U.S. 566 (Ex Parte Frasch) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ex Parte Frasch, 192 U.S. 566, 24 S. Ct. 424, 48 L. Ed. 564, 1904 U.S. LEXIS 971 (1904).

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Opinion

Me. Justice McKenna

delivered the opinion of the court.

This is a petition .for .a writ of mandamus to compel the Court of Appeals of the District of .Columbia to take jurisdiction of an appeal from the Commissioner of Patents.

The petition shows that petitioner was the first inventor of a new and useful improvement in the art of making salt by-evaporation of brine, which improvement consisted of new and useful means for removing incrustation of calcium sulphate from brine heating surfaces.

Petitioner applied for a patent for his invention in due form, and expressed his invention in six.claims, three of which were for the process of removing incrustation of calcium sulphate from heating surfaces, and' three of which were for an apparatus for use in the process.

The primary examiner-decided that “two different subjects of invention ” were presented in the specification and claims, and required a division of the claims under rule 41 of the Patent Office. A reconsideration of the decision was requested and denied. A petition for an appeal to the board of examiners-in-chief was filed. The primary examiner refused to' allow the appeal. A petition was then presented to the Commissioner of Patents praying that he make such order or take such action that petitioner’s appeal to the examiners-in-chief might be heard, or, if that prayer be denied, that the Commissioner himself “ consider the various matters all and severally raised by the appeal.” Both prayers were denied and petitioner appealed to the Court of Appeals of the District of Columbia. That court dismissed the appeal for want-of jurisdiction. This petition was • then filed and a rule to show cause issued. A return to the rule was duly made.

We have just held in Steinmetz v. Allen, ante, p. 543, that rule 41 of the Patent Office, in so far as it requires a division between claims for a process and claims for an apparatus, if they are related and dependent inventions, is invalid. We, however, *568 held that mandamus to the Commissioner, not appeal to the Court of Appeals of the District, was the proper remedy. It follows, therefore, that the rule to show cause should be discharged and the petition be dismissed, and it is

So ordered.

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Me. Justice McKenna

delivered the opinion of the court.

This is a petition .for .a writ of mandamus to compel the Court of Appeals of the District of .Columbia to take jurisdiction of an appeal from the Commissioner of Patents.

The petition shows that petitioner was the first inventor of a new and useful improvement in the art of making salt by-evaporation of brine, which improvement consisted of new and useful means for removing incrustation of calcium sulphate from brine heating surfaces.

Petitioner applied for a patent for his invention in due form, and expressed his invention in six.claims, three of which were for the process of removing incrustation of calcium sulphate from heating surfaces, and' three of which were for an apparatus for use in the process.

The primary examiner-decided that “two different subjects of invention ” were presented in the specification and claims, and required a division of the claims under rule 41 of the Patent Office. A reconsideration of the decision was requested and denied. A petition for an appeal to the board of examiners-in-chief was filed. The primary examiner refused to' allow the appeal. A petition was then presented to the Commissioner of Patents praying that he make such order or take such action that petitioner’s appeal to the examiners-in-chief might be heard, or, if that prayer be denied, that the Commissioner himself “ consider the various matters all and severally raised by the appeal.” Both prayers were denied and petitioner appealed to the Court of Appeals of the District of Columbia. That court dismissed the appeal for want-of jurisdiction. This petition was • then filed and a rule to show cause issued. A return to the rule was duly made.

We have just held in Steinmetz v. Allen, ante, p. 543, that rule 41 of the Patent Office, in so far as it requires a division between claims for a process and claims for an apparatus, if they are related and dependent inventions, is invalid. We, however, *568 held that mandamus to the Commissioner, not appeal to the Court of Appeals of the District, was the proper remedy. It follows, therefore, that the rule to show cause should be discharged and the petition be dismissed, and it is

So ordered.

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Bluebook (online)

192 U.S. 566, 24 S. Ct. 424, 48 L. Ed. 564, 1904 U.S. LEXIS 971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-frasch-scotus-1904.

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