In re Janney ( 1847 )

Cranch, J.

This is an appeal from tlie decision of the Commissioner of Patents, in the following words, contained in a letter from him to Mr. Janney, dated Patent Office, October 28th, 1847 :

‘1 Sir : It appears by the records of this office that your application for letters-patent for alleged improvement in machinery fox-sawing stones was examined and l'ejected, for l-easons assigned, on the 3d of August, 1843; ^at on the 7Ü1 of September following the case was reconsidered, and the decision was again revised and affirmed. All these actions took place under the administration of the late Commissioner Ellsworth. Under these circumstances the decision hei-etofoi'e made cannot be distui'bed, and your application must stand rejected. Respectfully youi's,

“Edmund Burke.

“Edward Janney, Esq.,

“CareJ. J. Greenough, Washington, D. C.”

The last application for a patent was made on the 27th of October, 1847, some small amendment having been made in the specification not affecting the merits of the claim, so that it was, in effect, an application to the pi-esent Commissioner to revise and revoke the two decisions made by Mr. Ellsworth, the foi'mer Commissioner. His refusal so to revise and l'evoke these decisions is not a ground of appeal under the acts of 1836 and 1839. The act of 1839 gives the light of appeal to the judge only in cases where an appeal.was by the previous act allowed from the decision of the Commissioner to a Boai'd of Examinei's, and then only when a patent was refused. In the present case he has not refused a patent. He decides only that he will not examine the meiits of the claim, which has been twice rejected after a full examination by his predecessor in office. This refusal was not a ground for appeal to Examiners under the seventh section of the act of 1836, and thex-efoi'e is not a gi'ound of appeal to the judge.

Having no juxisdiction of such an appeal, it is not for me to say whether the refusal under the circumstances of the case was right or wrong. There is no limit of time as to the appeal, and I do not perceive any reason why Mr. Janney may not now appeal from the decision of Mr. Ellsworth, and have the merits of his invention decided. I understand the merits of both applications are alike. Having no jurisdiction of this appeal, I suppose it must be considered as dismissed.

J. J. Greenough, for appellant. W. P. N. Fitzgerald, for Commissioner.