
    CHURCHILL v. GOODWIN.
    Patents; Interference; Appeal and Error.
    Where the record in an interference case shows that, a year after the-declaration of the interference, judgment of priority was awarded by the Examiner of Interference to the senior party because of the failure of the junior party, after due notice, to file a preliminary statement, and there is nothing in the record to show that an injustice was thereby done to the junior party, a decision of the Commissioner of Patents awarding priority to the senior party will be affirmed. (Following Hallowell v. Darling, ante, 405.)
    No. 562.
    Patent Appeals.
    Submitted January 15, 1909.
    Decided January 18, 1909.
    Hearing on an appeal from a decision of the Commissioner of Patents in an interference proceeding.
    
      Affirmed.
    
    The facts are stated in the opinion.
    
      Mr. Frank T. Brown and Mr. Francis A. Hopkins for the •appellant.
    
      Mr. R. O. Mitchell and Mr. Langdon Moore for the appellee.
   Mr. Justice Van Orsdel

delivered the opinion of the Court:

This is an appeal from the decision of the Commissioner of Patents.in an interference proceeding. The subject-matter of the interference is an improvement in locks for locker doors. It is unnecessary to set out the issue for the purpose of deciding the ■case before us.

Appellee, Edward O. Goodwin, filed his application on January 9, 1904. Appellant, Durand Churchill, filed his application August 7, 1905. The interference was declared March 12, 1907.

Appellant, the junior party, failed to file any preliminary •statement, as required by the rules of the Patent Office. It appears from the statement of counsel that the time for filing the preliminary statement was extended repeatedly, but this •extension, or the reasons therefor, do not appear in the transcript of record, and are not properly before us for consideration.

On March 24, 1908, the Examiner of Interferences rendered the following decision: “On February 13, 1908, notice was given that judgment on the record would be rendered against Churchill, the junior party, for failure to file a preliminary statement, unless he should, by March 14, 1908, show sufficient c.ause why such action should not be taken. This time having passed, and no sufficient showing having been made [the petitions by Churchill having been denied by the Commissioner], judgment of priority of invention of the subject-matter in issue in this interference is hereby rendered in favor of Edward C. Goodwin, the senior party.” The petitions referred to within-the brackets in this decision do not appear in the record.

Erom the record it is impossible for us to even pass upon the-question of the proper exercise of discretion by the Commissioner of Patents. It appears that one year elapsed between the declaration of the interference and the decision of the Examiner. During this period, appellant failed to file his preliminary statement. Due notice was given him by the Patent Office to the effect that, if this statement was not filed by a given date, judgment would be rendered against him on the record. He failed to respond to the notice, and judgment was accordingly rendered. So far as the record before us discloses, no injustice was perpetrated upon appellant by any of the tribunals of the Patent Office, and, in the absence of such showing, we must presume that none was committed. The extension and limitation of the time within which appellant should file his preliminary statement was a matter within the discretion of the Commissioner. The exercise of discretion in refusing to longer continue the-ease in order to give appellant further time to file his preliminary statement is not subject to review by us, unless it clearly appears from the record that the rights of appellant have been prejudiced by an unwarranted departure from the law or rules of procedure regulating proceedings of this kind in the Patent Office. Hallowell v. Darling, present term [ante, 405], and cases cited. No such abuse of discretion is apparent on the face of this record.

The decision of the Commissioner of Patents is therefore affirmed, and the clerk is ordered to certify these proceedings as-required by law. Affirmed.  