Parker v. Craft

258 F. 988, 49 App. D.C. 88, 1919 U.S. App. LEXIS 1314

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 2, 1919
• Docket: No. 1237
• Status: Published

Opinion

VAN ORSDEE, Associate Justice.

This is an interference proceeding, in which appellant, Parker, appeals from an order of the Comnjis-sioner of Patents affirming the decision of the Board of Examiners in Chief “dissolving the interference on the ground that count 1 is unpat-entable and count 2 cannot be made by Parker.’*

We are confronted at the threshold with a motion to dismiss the appeal for lack of jurisdiction. We have held in many cases that an order dissolving an interference is a 'mere interlocutory order, from which no appeal lies to this court. Carlin v. Goldberg, 45 App. D. C. 540; Field v. Colman, 47 App. D. C. 189. This is based upon the ruling that, in interference, appeal will lie to this court only from a judgment of priority. In re Fullagar, 32 App. D. C. 222; Cosper v. Gold, 34 App. D. C. 194; In re Carvalho, 47 App. D. C. 584.

Not only was there no order of priority in this case, but such a finding would have been inconsistent with the order of dissolution. A motion to dissolve an interference fundamentally challenges the right of one of the parties to make the claims. An order sustaining the motion, therefore, is equivalent to a holding that no interference in fact exists. Before an interference can exist, or a judgment of priority, be rendered, not only must both parties have a right to make the claims of the issue, but the parties must have the right to claim, and in fact be claiming, the same tiling.

It therefore follows that the order of the Commissioner in this, case was not even the equivalent of a judgment of priority.

The appeal is dismissed.

Dismissed.