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SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1916.
EWING, COMMISSIONER OF PATENTS, v. UNITED STATES EX REL. FOWLER CAR COMPANY.
CERTIORARI TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.
No. 721. Argued April 17, 1917.-Decided May 7, 1917.
When an applicant for a patent admits that the invention shown in his application was made at a date subsequent to the date upon which another application for the same invention was filed, and by amendment of his application adopts the prior applicant's claims, he thereby concedes the priority of the other's invention, its utility and the sufficiency of the claims.
In such a case the Commissioner of Patents can not be required by mandamus to declare an interference.
Under Rev. Stats., § 4904, the duty of the Commissioner to declare an interference arises only when, in the exercise of his judgment upon the facts presented, he is of opinion that a senior application will be interfered with by a junior one; the mere fact that the junior application covers the same ground or that the junior applicant asserts an interference is not enough to require the Commissioner to act. The judicial remedy for determining priority of invention is by suit in equity between the parties, not by mandamus against the Commissioner in an attempt to control the administrative discretion conferred upon him by Rev. Stats., § 4904.
45 App. D. C. 185, reversed.