Judgment in an interference proceeding will not be made final by the Office after the filing of a notice of appeal, on the ground that it was filed one day late, it being regarded as being within the discretion of the Court to relieve against the default. Proutt v. Johnston and Johnston, 130 O. G. 2718. The Court has no power to award costs. Wells v. Reynolds, 69 O. G. 1507. When a record was introduced, but on examination found to have no bearing in the case, it must be at the cost of the one offering it. Stevens v. Seher, 81 0. G. 1932. A general assignment of error in appeal from the Examiner to the Board is sufficient to base the question of res adjudicata upon, or it might have been raised by the Board on its own motion. Carroll v. Hallwood, 135 0. G. 896. B. has appealed, but his assignment of errors does not challenge the decision of the Commissioner on the question of priority of invention and to this extent he is presumed to have acquiesced in the decision against him. Bechman v. Wood, 15 App. D. C. 487. (In an interference case.) The present is no more than a moot cause since upon the face of the record itself the question of patentability has been expressly reserved for further and future consideration. Oliver v. Felbel, 100 O. G. 2384. A party may take advantage of all the time allowed by law without prejudicing his case. Jones v. Starr, 117 O. G. 1495. An assignment of a trade-mark permitted after notice and before appeal is perfected. Levy & Co. v. Uri, 131 O. G. 1689. We will not consider affidavits filed either in this Court or the Patent Office relating to changes that have occurred in drawings, models, experimental machines and like exhibits. These matters must be wholly settled in the Patent Office (Blackford v. Wilder, 104 0. G. 580.) Greenwood v. Dover, 109 0. G. 2173; Willsin v. Bradshaw, 91 0. G. 648. Affidavit verified before notary who was also attorney in the case is invalid. The prohibition of attorneys acting as notaries in the Code of the District applies to attorneys outside of the District. The Hall Safe Co. v. Herring-Hall-Marvin Safe Co., 135 Appeal from a decision upon the right to amend preliminary statement. Cross v. Phillips, 87 O. G. 1399. Rule 149. Notice to Commissioner of Appeal to Court. When an appeal is taken to the Court of Appeals of the District of Columbia, the appellant shall give notice thereof to the Commissioner, and file in the Patent Office, within forty days, exclusive of Sundays and holidays, but including Saturday half holidays, from the date of the decision appealed from, his reasons of appeal specifically set forth in writing. Rev. Stat., sec. 4912; sec. 9, act of February 9, 1893. CONSTRUCTIONS. Court granted a petition relieving a default in view of the fact that the opposite party did not object. Truby, 268 O. G. 383. Reinstatement of an appeal not taken within the forty days allowed by Rule 21, refused. Hitchcock, 247 O. G. 965. Will entertain a motion for a new trial pending an appeal. Clements v. Richards v. Meissner, 111 O. G. 1627. This rule limits the time in which the appeal must be taken to forty days from the date of the order appealed from, excluding the day of date. Burton v. Bentley, 87 O. G. 2326. The Office has no power to extend time. Clement v. Richards v. Meissner, 111 O. G. 1626-7. Saturday after 12 o'clock is a legal holiday and is to be computed as one-half day. Ocumpaugh v. Norton, 114 O. G. 545. A party allowed to prosecute his appeal when notice was filed one day late. Proutt v. Johnston and Johnston, 130 O. G. 2118. The rule that all appeals taken from the Commissioner of Patents shall be taken within forty days from the date of the ruling and not afterward is a positive law to the Court and to the suitors therein. Ross v. Loewed, 77 O. G. 2141; Bryant v. Seymour, The two years allowed for an action by R. S. 4894 is not applicable to appeals to the Court of Appeals. 77 O. G. 1600. The running of the time limited for appeal is not arrested. by a motion for a new trial. Ross v. Loewer, 77 O. G. 2141; Bryant v. Seymour, Whenever the time for appeal has gone by the time for rehearing has elapsed with it. Scott v. Brooks, 71 O. G. 1314. Rule 150. Pro Forma Proceedings in Patent Office. Pro forma proceedings will not be had in the Patent Office for the purpose of securing to applicants an appeal to the Court of Appeals of the District of Columbia. (For forms of appeals and rules of the Court of Appeals of the District of Columbia respecting appeals, see, Rules 148, 149.) Rule 151. Hour of Hearing. Hearings will be had by the Commissioner at 10 o'clock a. m., and by the board of examiners in chief at 1 o'clock p. m., and by the examiner of interferences upon interlocutory matters at 10 o'clock a. m., and upon final hearings at 11 o'clock a. m., on the day appointed unless some other hour be specifically designated. If either party in a contested case, or the appellant in an ex parte case, appear at the proper time, he will be heard. After the day of hearing, a contested case will not be taken up for oral argument except by consent of all parties. If the engagements of the tribunal having jurisdiction be such as to prevent the case from being taken up on the day of hearing, a new assignment will be made, or the case will be continued from day to day until heard. Unless it shall be otherwise ordered before the hearing begins, oral arguments will be limited to one hour for each party in contested cases, and to one-half hour in other cases. After a contested case has been argued, nothing further relating thereto will be heard unless upon request of the tribunal having jurisdiction of the case; and all interviews for this purpose with parties in interest or their attorneys will be invariably denied. CONSTRUCTIONS. The fact that two hearings before different tribunals are set at the same time is proper and does not invalidate the notice. Bombard v. United States Graphite Co., 129 O. G. 479. Rule 152. Wishes of Parties and Attorneys. Hearings in ex parte and contested cases will, as far as is convenient and proper, be set, advanced, and adjourned to meet the wishes of the parties and their attorneys. Rule 153. Practice in Motions. In contested cases reasonable notice of all motions, and copies of motion papers and affidavits, must be served as provided in Rule 154 (b). Proof of such service must be made before the motion will be entertained by the office. Motions will not be heard in the absence of either party except upon default after due notice. Motions will be heard in the first instance by the officer or tribunal before whom the particular case may be pending. In original hearings on motions the moving parties shall have the right to make the opening and closing arguments. In contested cases the practice on points to which the rules are not applicable shall conform as nearly as possible, to that of the United States courts in equity proceedings. CONSTRUCTIONS. Setting of hearing. 199 O. G. 1. A petition by an assignee of a part interest to intervene in the prosecution of an application will be dismissed, where such petition was not accompanied by proof of service upon the other assignees and upon the applicant. Kyle, 193 O. G. 753. An objection for want of notice of filing an amended preliminary statement disregarded in view of the fact that objector had ordered a copy of the same. Klenk v. Kruse, 177 O. G. 1300. In serving notice for taking testimony, ample time should be given counsel to communicate with his client and arrange his business affairs before he is compelled to start on his journey. Otherwise testimony should be stricken out. Randerson v. Hanna & Hanna, 173 O. G. 586. The sufficiency of the notice depends largely upon the circumstances. In this case a notice given in New York City on May 3 that certain witnesses would be examined at Battle Creek, Mich., on May 5, held sufficient. Kuth et al. v. Lundquit et al. v. Lorimer et al., 157 A party taking his own testimony thought it was only necessary for him to commence taking his testimony within the time limited. Ignorance held not to excuse. Mattice v. Langworthy, 140 O. G. 507. The motion of October 8 which is entitled "a motion for a rehearing" was, in effect, a motion to set aside the decision of October 6 for lack of service of Pickard's motion. As no abuse of discretion on the part of the Examiner of Interferences has been shown in holding that the reasons given were not sufficient to justify the setting aside of his prior decision, it will not be disturbed. Pickard v. Ashton and Curtis, 137 O. G. 977. After pleadings have been filed, proofs taken, and the case ready for final hearing, an applicant for cancelation will not be permitted to withdraw his application without prejudice to his right to file a new application. Ontcault v. The New York Herald Company, 136 O. G. 437. The rule provides that reasonable notice of all motions must be given and that a motion will not be entertained in absence of proof of service. The same reason exists for re |