
    SOCIETE DE CONDENSATION ET D’APPLICATIONS MECANIQUES v. CONWAY P. COE, Commissioner of Patents
    Law No. 87756
    Philip Mauro and Reeve Lewis for petitioner,
    R. F. Whitehead for respondent.
   MEMORANDUM

BAILEY, J.

Rule 162 of the Rules of Practice in the United States Patent Office provides

“That where printing has thus been dispensed with, the appellant, if appeal is taken from the decision of. the examiner of interferences, may file three clearly legible typewritten copies of the record, both of his own and the appellee, if the same have not been printed, and which shall not become a part of the record, within thirty days from the taking of the appeal. If the copies of the record are not filed within the time specified or within any extension thereof granted by the board of appeals, the appeal shall be dismissed.”

.The Board of Appeals of the Patent Office has construed the word “shall” in the last clause quoted — “the appeal shall be dismissed” — as directory mer.ely and not as mandatory and the Commissioner of Patents has concurred in this view. The court would be slow to interfere with the construction that an independent tribunal and the Corn-missioner of Patents has pnt upon rules enacted by the Commissioner with the approval of the Secretary of Commerce. That tribunal has held that this particular provision is not for the benefit of litigants but for the benefit óf the Board of Appeals. The requirement would not seem to be jurisdictional, and the construction placed upon the word “shall” would seem to be a possible one to say the least.

I do not think the judicial discretion of the tribunals of the Patent Office can be controlled by mandamus issuing from this court, especially in view of many decisions of the Supreme. Court, including Wilber v. U. S. ex rel. Kadrie, 281 U. S. 206.

The motion of the petitioner for judgment will be denied.  