
    Fredric RUSCHE, Appellant, v. Walter H. COBI, Appellee.
    Special Patent Docket No. 91.
    United States Court of Customs and Patent Appeals.
    April 6, 1961.
    Smith, J., dissented.
    Whittemore, Hulbert & Belknap and Clarence B. Zewadski, Detroit, Mich., for Fredric Rusche.
    Fish, Richardson & Neave and E. Cummings Sanborn, New York City, for Walter H. Cobi.
    Before WORLEY, Chief Judge, and RICH, MARTIN, and SMITH, Judges.
   PER CURIAM.

Involved here are a motion by Cobi to dismiss Rusche’s appeal to this court, and a petition by Rusche for a writ of mandamus directing the Commissioner to grant an extension of Rusche’s time for perfecting said appeal.

A similar situation was involved in our opinion of November 3, 1960, 283 F.2d 529, in which both the motion and petition were denied and the case remanded to the Patent Office for further consideration.

It has now been established that a memorandum from the Manuscript Branch of the Patent Office, dated July 11, 1960, upon which our first action was based, was erroneously dated and was not actually prepared until July 13, 1960, two days after Rusche’s time for docketing his appeal in this court had expired. Under these circumstances the action of the First Assistant Commissioner in refusing to extend Rusche’s time for docketing the appeal was correct, and dismissal of the appeal is in order.

Cobi’s motion to dismiss is granted. Rusche’s petition for a writ of mandamus is denied.

SMITH, J., dissents.  