FRAIGE v. PARKER, 610 F.2d 795 (C.C.P.A. 1979)

RICHARD FRAIGE, PETITIONER, v. LUTRELLE F. PARKER, ACTING COMMISSIONER OF PATENTS AND TRADEMARKS, RESPONDENT.

No. 79-631.United States Court of Customs and Patent Appeals.
December 6, 1979.

Franklin D. Wolffe, Fidelman, Wolffe Waldron, Washington, D.C., for Richard Fraige.

Joseph F. Nakamura, Sol., Jere W. Sears, Deputy Sol., of counsel, U.S. Patent and Trademark Office, Washington, D.C., for the Acting Commissioner.

Before MARKEY, Chief Judge, and RICH, BALDWIN, and MILLER, Judges.

MARKEY, Chief Judge.

[1] Petitioner Fraige requests writs of mandamus and prohibition to the Commissioner of Patents and Trademarks, directing him to:

(1) make a finding of prior public use with regard to the invention claimed in Application Serial Number 718,800;
(2) investigate the issuance of multiple patents on the structure disclosed and claimed in U.S. Letters Patent No. 3,864,768;
(3) deny issuance of a patent on Application Serial Number 718,800.

[2] Fraige also requests attorneys fees and costs relating to this petition. [3] The petition is dismissed. The request for attorneys fees and costs is denied.

[4] Background
[5] Wavecrest Co. and Raymond Phillips, co-owners of U.S. application serial No. 718,800 (‘800), filed a declaratory judgment action in the U.S. District Court for the Central District of California, asking that Fraige’s patent No. 3,864,768 be declared invalid. During that litigation, Fraige discovered the contents of the ‘800 application. In the belief that that application claimed the invention disclosed and claimed in his patent, Fraige petitioned for institution of a public use proceeding under 37 CFR 1.292.

[6] The Commissioner referred the petition and all related papers to the examiner in charge of the ‘800 application. The examiner having reported that a prima facie showing of “on sale” or public use had not been made, the Commissioner denied the petition. [7] Fraige filed a second petition, again requesting a public use proceeding. Treating that petition as a request for reconsideration, the Commissioner again refused to initiate the proceeding.

[8] OPINION
[9] Though this court has the power under 28 U.S.C. § 1651(a) to issue all writs necessary or appropriate in aid of its jurisdiction, Goodbar v. Banner, 599 F.2d 431, 433, 202 USPQ 106, 108 (Cust. Pat.App. 1979); Loshbough v. Allen, 404 F.2d 1400, 56

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CCPA 913, 160 USPQ 204 (1969), § 1651(a) does not expand a court’s jurisdiction. “[I]t is incumbent upon any petitioner seeking * * * [a writ of mandamus and prohibition] this court to demonstrate that we have subject matter jurisdiction over the issue involved.” Goodbar v. Banner, 599 F.2d at 434, 202 USPQ at 108. No such demonstration has been made.

[10] The Commissioner’s action here does not frustrate our prospective jurisdiction. See Margolis v. Banner, 599 F.2d 435, 441, 202 USPQ 365, 371 (Cust. Pat.App. 1979). “[O]ur grant of jurisdiction does not, in the normal course of events, provide us with the authority to directly review or supervise the acts of the Commissioner.” Godtfredsen v. Banner, 598 F.2d 589, 593, 202 USPQ 7, 11 (Cust. Pat.App. 1979) (emphasis in original). Because the matter complained of is not one cognizable by this court on appeal, we dismiss the petition for lack of jurisdiction. [11] The request for attorneys costs and fees is denied, Meitzner v. Mindick, 549 F.2d 775, 784, 193 USPQ 17, 24 (Cust. Pat.App. 1976) cert. denied, 434 U.S. 854, 98 S.Ct. 171, 54 L.Ed.2d 124, 195 USPQ 465 (1977); Reddy v. Dann, 529 F.2d 1347, 1349, 188 USPQ 644, 645 (Cust. Pat.App. 1976). [12] DISMISSED.

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