before being required to decide whether to seek judicial review and, if they appeal, to formulate appropriate reason of appeal as required by 35 U.S.C. 142 ; it is not significant that Board's decision on reconsideration was available to L within 60 day period since all parties were entitled to the full 30 days after that decision; whether R's petition reopened any issue affecting L is not of controlling significance since Rule 304 does not restrict its scope in terms of the specific effect of point on which reconsideration is sought.

United States Court of Customs and Patent Appeals, November 6, 1969 [Motion to Dismiss Notice of Appeal] Interference No. 94,847

[Denied.]

Harold Einhorn, Whelan, Chasan, Litton, Marx, Wright, attorneys of record, for appellants.

Lawrence F. Scinto, Ward, McElhannon, Brooks, and Fitzpatrick for appellees. Before RICH, ALMOND, BALDWIN, and LANE, Associate Judges.

PER CURIAM:

This is an appeal arising out of interference No. 94,847 which involved three parties in the Patent Office and was there entitled “Reed and Wilkinson vs. Kaufman and McMullen vs. Langer and Tornqvist." On March 14, 1969, the Board of Patent Interferences awarded priority to Kaufman and McMullen (Kaufman). Reed and Wilkinson (Reed) timely filed a request 1 for reconsideration of the board's decision on or about April 14, 1969, which request was denied by the board in a decision on reconsideration dated May 7, 1969. Subsequently, Langer and Tornqvist (Langer), who had brought no petition for reconsideration themselves, filed a notice of appeal to this court on or about June 3, 1969. Reed did not seek judicial review of the board's decision.

Before us, Kaufman moves that the notice of appeal by Langer be dismissed as being untimely and that Langer be adjudged without standing to prosecute an appeal to this court from the decision in the interference.

The issue arises under Rule 3042 of the Rules of Practice of the Patent Office which states in pertinent part:

304. Time for appeal or civil action. The time for filing the notice and reasons of appeal to the U.S. Court of Customs and Patent Appeals (rule 302) or for commencing a civil action (rule 303) is sixty days from the date of the decision

1 Reed having designated his paper as a "request" and the statute, quoted hereinafter having employed the word "petition", the two terms are used interchangeably in this opinion.

The reason for Rule 304 as far as it pertains to appeals to this Court is found in 35 U.S.C. 142, which reads:

"When an appeal is taken to the United States Court of Customs and Patent Appeals, the appellant shall give notice thereof to the Commissioner, and shall file in the Patent Office his reasons of appeal, specifically set forth in writing, within such time after the date of the decision appealed from, not less than sixty days, as the Commissioner appoints."

of

the Board of Patent Interferences. If a petition for rehearing or reconsideration is filed within thirty days after the date of the decision of the * Board of Patent Interferences, the time is extended to thirty days after action on the petition. *

[1] It will be observed that the notice of appeal in this case was not filed within the sixty days from the decision of the board provided in the first sentence of Rule 304 but was filed within the thirty days from the board's action on request for reconsideration specified in the second sentence of the rule. The issue is whether the Reed request for reconsideration and the board's action thereon was effective to extend the time for Langer to file a notice of appeal as specified by the second sentence of the rule.

We hold that the time for Langer to take such action was so extended because we think the plain meaning of Rule 304 is that the time for all parties to file a notice of appeal to this court is extended as the result of a timely petition for reconsideration by any party. Certainly the language of the rule provides no basis for reaching a contrary conclusion. Also, reason dictates that the deadline for taking an appeal should most appropriately be the same for all parties in order to avoid confusion. In particular, it is apparent that all parties to an interference should be assured of being informed of the final position of the board before being required to decide whether to seek judicial review and, if they do appeal to this court, to formulate appropriate reason of appeal as required by 35 U.S.C. 142.3

Kaufman points out that the board's decision on reconsideration in the present case was mailed one week before the close of the sixty-day period following its original decision, and states that it thus was available to Langer within that sixty day period. We do not consider that circumstance significant, since the party Reed obviously was entitled under Rule 304 to the full thirty days after decision on reconsideration in which to initiate an appeal and we find no reason to interpret the rule as restricting any other party to a shorter period. Kaufman also argues that the Reed petition did not reopen any issue affecting Langer. We do not think that such contention is correct since granting of the petition would have resulted in an award of priority to Reed or the consequence of his being granted a record date previously denied him and might have affected the circumstances under which Langer would have had to assess his own chances of prevailing ultimately. Moreover, that question is not of controlling significance because the language of Rule 304 does not restrict its scope in terms of the specific effect of the point on which reconsideration is sought.

Additionally, Adams v. Wolinski, 48 CCPA, 774, 285 F. 2d 133, 128

See note 2.

USPQ 288 (1961), is relied on by Kaufman for the proposition that "the two losers in a three-party interference must independently pursue and perfect their individual rights of appeal and could not rely on the rights of other losers." Specifically, the court held there that a losing third party to an interference who did not timely appeal to this court or file a civil action under 35 U.S.C. 146 had lost his right to review of the board's decision and could not by election under 35 U.S.C. 141 force the other two parties who were involved in the appeal to have any further proceedings conducted through a civil action under 35 U.S.C. 146, apparently with himself free to participate. That decision deals only with the right of a person not involved in an appeal to make an election under 35 U.S.C. 141. It obviously does not concern the present issue as to the interpretation of Rule 304.

The motion of Kaufman to dismiss the Langer notice of appeal and adjudge Langer without standing is denied.

PATENTS

(417 F. 2d 1075; 163 USPQ 622)

IN RE LAWRENCE A. KOCINA (No. 8199)

PARTICULAR PATENTS-STABILIZER

Standoff Ladder Stabilizers, claims of application refused.

United States Court of Customs and Patent Appeals, November 20,

[Affirmed.]

1969

Appeal from Patent Office, Serial No. 436,762

J. H. Slough, attorney of record, for appellant.

Joseph Schimmel for the Commissioner of Patents. Lutrelle F. Parker, of counsel.

[Oral argument November 4, 1969 by Miss Slough and Mr. Parker]

Before RICH, Almond, BALDWIN, LANE, Associate Judges, and MATTHEWS, Judge, sitting by designation.

BALDWIN, Judge, delivered the opinion of the court:

This is an appeal from the decision of the Patent Office Board of Appeals which affirmed the rejection of all the claims in appellant's application as unpatentable over Fillery 2 in view of Taylor and Stanley, under 35 U.S.C. 103.

1

1 Serial No. 436,762, filed Mar. 3, 1965, entitled "Standoff Ladder Stabilizers."

2 British Patent Spec. 629,851, accepted Sept. 29, 1949.

U.S. Patent 1,393,922, issued Oct. 18, 1921.

U.S. Patent 2,720,354, issued Oct. 11, 1955.

3

The Invention

The invention is a device adapted to be readily attached or detached from the top portion of a ladder and designed primarily to stabilize the ladder against lateral tipping and space its upper end away from the surface toward which the ladder is inclined, thus providing a more upright, and hence, safer and more convenient work position. It is best described with reference to the application drawing, portions of which are reproduced below:

Figures 2 and 3 show alternate views of the stabilizer as attached to the upper end of a ladder. Figure 4 is an enlarged fragmentary detail of the lower portion of the stabilizer showing how it is attached to the ladder.

As can be seen, the device comprises a pair of spaced, angularly bent support members 21, 22 having parallel portions 23, 24 and upwardly and outwardly diverging leg portions 25, 26, connected between the parallel portions by a pair of inverted, U-shaped channels 30, and between the divergent leg portions by à brace 37. Claim 12, the broadest of the appealed claims, reads:

12. A stabilizer for a straight ladder comprising a plurality of ladder rungs and parallel side rails, a pair of channel shaped mounting means, each said mounting means adapted to embrace a medial portion of the length of one of pair of spaced ladder rungs, spaced support means connected to the ends of said mounting means, said support means having portions parallel to said parallel side rails traversing and supporting rearward portions of said pair of rungs, said support means each having a leg portion of equal length extending upwardly and laterally of the ladder, the said legs being divergent and angled away from a plane defined by the mounting means and having free ends adapted to abut spaced portions of an upright work surface area disposed on either side and laterally outwardly of the side rails of the ladder upwardly and inwardly of the ladder portions of the stabilizer wherefor the upper end portions of the ladder are spaced outwardly of the work surface and the upper portion of the ladder is supported solely laterally by the angled and divergent free ends of the leg portions.

The other claims each depend from claim 12. Claim 13 further defines the channel shaped mounting means as embracing a substantial portion of each engaged ladder rung. Claim 14 specifies that the ends of the support legs are disposed laterally away from the ladder side rails thus providing for a wider work surface. Claim 15 adds the brace to the structure recited in claim 12.