Hammer v. Robertson

PER CURIAM. Hammer, in prosecuting his application for a patent, encountered no opposition frqm other parties claiming the same asserted invention. There was no interference. His only opposition (so to speak) was from the Examiners; i. e., the Office. His was, in common parlance, an ex parte, not an inter partes, proceeding. By this appeal he seeks to present a question not without interest, viz.: Is there any remedy under R. S. § 4915 (Comp. St. § 9460), for an applicant such as he, who has no successful patentee to sue, and no opponent but the Commissioner himself? On this question we cannot render an advisory opinion, for no such function is granted us. We can only decide whether such a disappointed patentee applicant can bring a suit under the statute in his home district, and either compel an official whose private and official residences are elsewhere there to appear, or obtain relief without either service or appearance. As for the second effort (In re Hammer) it is a sufficient, though summary, holding to point out that the statute (R. S. § 4915) provides only for a “remedy by bill in equity,” and this petition to the [461] court is not and can never be such a bill. That any proceeding under this statute is by plenary suit in equity is settled. Dover v. Greenwood (C. C. A.) 177 F. 946. And there is nothing to the contrary of this holding in Re Greeley, 6 Fisher, 675. As to the first attempt, that is' in form a plenary suit, not unlike Barrett v. Ewing, 242 F. 506, 155 C. C. A. 282, and several others, and the. only question is whether the service of process confers jurisdiction; a point on which Butterworth v. Hill, 114 U. S. 128, 5 S. Ct. 796, 29 L. Ed. 119, has never been overruled and is binding on us. Therefore we hold that service on the defendant in Washington, D. C., was unavailing, and the decision below was right. Appellant urges that this renders R. S. § 4915, a farce, because it throws him back into the courts of the District of Columbia, which have already decided against him, unless Mr. Robertson consents to be served in the district of his home, and he wants rights, not favors. Even recourse to the Supreme Court of the United States is by recent legislation denied. Chott v. Ewing, 237 U. S. 197, 35 S. Ct. 571, 59 L. Ed. 913; Baldwin v. Howard, 256 U. S. 35, 41 S. Ct. 405, 65 L. Ed. 816. This is the appeal ad miserieordiam, and must be addressed to Congress, which makes statute law, not to us who apply it. Decree affirmed.