*1
by
discretionary power
limited
peal
inadequate
of review
are
in
in this context
rules,
process.3
to consider matters now
procedural
our
due
own
terms of
proceed-
to have invalidated its
asserted
position
Appellee has
the
that
taken
ings.
contemplates
the
our en banc order
Although
statutory
intimate no
we
view
construction issue of whether
5-day
claims
are
the constitutional
advanced
sentence constitutes
or
$25
insubstantial,
respects
do
on
we
not
penalty
the
of more than
within
$50
argues
meaning
think
this record
it consonant with ei-
It
statute.
contrary
judicial
administration
purpose
ther
efficient
leg
regard
comity
points
or the
which should obtain be-
plain.
this
is
history
tween the
and the
heretofore submitted
United States
islative
involving
respectively,
courts,
appeals
for us
of Columbia
in earlier
this court
issue;
to scrutinize
action of the DCCA
our
decision Wildeblood
this
of,
complained
U.S.App.D.C.
at least in a case where
v. United
Edgerton
Judge
prospect of
has faced the
P.L. 91-358 BOYDEN, Appellant Gerald Glen scope precise the sin- Whatever gle question posed banc allow- in our en ance, appellant amicus has COMMISSIONER OF PATENTS. nor neither rely upon this is- chosen No. 22238. Instead, sue of construction.4 Appeals, States Court solely sought constitu- relief here is District of Columbia Circuit. grounds. Appellant fully concedes tional Argued Dec. 1970. pressed upon us points now Judge Belson Decided Feb. never before were raised court, application in the trial nor Rehearing Petition for Denied of an for allowance filed with the DCCA March although represent- appeal, was by present throughout counsel. is, thus, no record existence There these made reference to
which was
issues, opportuni- there has been court,
ty we have a over which provides blood from the traditional construction Rule 28 of the DCCA Rules goes say statute, that: but on to sufficient “shall contain a evidence, proceedings of the recital any event, appellant submits In reasonably ruling rulings present or infirmity (c) the con- 11-741 sought reviewed. With it there to be irrelevancy preappeal of the stitutional points be filed a brief statement screening process and not alternative upon.” relied In this and authorities sentence, prison could have been recital of the facts was case anyway by the then avoided this case points disputed appellee. His non-indigent appellant. appeal were directed allowance of no reference whatsoever Amious makes support sufficiency those facts to interpretation problem, in its brief to alleged conviction, to certain arguing as of rather that an part of the trial court. errors on the required by due cases is in all criminal process. brief, appellant notes In in his a footnote Edgerton in Wilde- dissent the fact of the
Leventhal, Judge, concurred Circuit opinion.
and filed Arlington, Witherspoon,
Mr. John F. Va., with whom Mr. R. Hutchin- Edwin son, Washington, (both appointed D. C. Court), ap- brief, was on for pellant. Wendel, Mr. Charles A. New City, York of the bar of the Court of Appeals York, pro vice, by of New hac special argued Court, ap- leave of also pellant. Sears, Mr. Jere Solicitor, W. with Asst. Cochran, Solicitor, Mr. whom S. Wm. was brief, on appellee. Joseph Mr. Schimmel, Solicitor, the time the rec- at filed, ord Parker, was and Mr. Lutrelle F. Washington, C., Attorney, D. en- also appearances tered appellee. DANAHER, Before Senior Circuit Judge, ROBB, and LEVENTHAL and Judges. Circuit DANAHER, Judge: Senior Circuit April This ten- applica- dered to the patent tion which the Of- Patent fice declined to file since the accompanied by filing was the $95 required Appellant fee law. there- upon sought an order the nature of compel mandamus the Commissioner accept patent applica- and examine his tion filing or, alternatively, fee that he damages $100,000 we are dis in the sum bound affirm his order of awarded enough The District missal. costs. seems clear interest appel charge” (emphasis quite properly “Commissioner shall allowed1 ours) upon pauperis specified lant to forma fees in 35 U.S.C. showing indigency. 41.2 The Commis Note § also that 35 U.S.C. § *3 alleging dismiss, “patent paid to lack of vides that sioner moved shall be fees jurisdiction subject to deposit over the matter and the Commissioner who shall upon Treasury failure to state a claim relief same in the of the United * * *."3 granted. added). (Emphasis could that mo States Thereafter be granted. tion was We allowed person No has vested pauperis appointed and counsel forma patent, McClurg Kingsland, to a see 42 v. diligently represented who have here (1 Howard) 202, 206, U.S. appellant’s interests. (1843), privileged but is to seek provides appli- 35 111 U.S.C. that an compliance § monopoly upon tected patent specifi- cation for shall include Congress with the has conditions which 112, drawing prescribed by cation as imposed. § applies pay That rule to the prescribed by 113, pre- as an oath as required § ment of fees adminis for the by concludes, “ap- scribed 115 and § patent just tration of as it laws de plication signed by appli- be must compliance mands conditions, with other accompanied by required cant and statutorily the fee imposed. Certainly pow by (Emphasis added.) law.” Congress ers of patent in the law field plenary they directly
are
from
stem
the Constitution.4
I
grounds
None of various
II
urged upon
requires
reversal
extend
us
discussion,
But,
we deem be con
granting
appellant argues,
trolling
necessary
ap
as a
conclusion that
41(a)
that Sections
and 111 are
un-
pellant
upon
claim
had failed to state a
face,
their
the Commis-
granted.
which relief could be
The dis
appellant’s pat-
sioner’s treatment of the
judge correctly
perceived,
trict
application brings
so
and
poor
“that
about
Despite
pleading,
proceedings.
the inartful
we are sat
there
We
observed that
appellant
isfied
showed he was
made no such allowance
it had
power
authorized
do
under
the statutes
so.
pursuant
1915(a),
28
U.S.C.
Sikora
§
language
command,
of
“Shall”
Brenner,
U.S.App.D.C.
357, 359,
126
v.
Zerbst,
490, 493,
Escoe v.
55 S.
134,
379 F.2d
136
and
818,
(1935)
Ct.
1566
as Mr.
79 L.Ed.
jurisdiction
pursu
court had
of the action
Justice Cardozo observed for a unanimous
1338(a).
ant
§
28 U.S.C.
The Com
see the
Mr. Jus
court. And
discussion
missioner’s action here we take to he final.
Richbourg
tice Stone in
v.
Motor Co.
Cf.
of
v. White
Patents
534,
States,
528,
281
50
U.S.
S.
ley,
(4 Wall.)
533,
522,
71
18 L.Ed.
U.S.
385,
Ct.
L.Ed. 1016
74
generally,
335
See
Adkins v.
passing
We
that 35
note
U.S.C.
Co.,
E.
Du Pont De
I.
Nemours &
335
authorizing
145
a civil action
§
85,
(1948)
U.S.
69
93
43
L.Ed.
S.Ct.
provides
“[a]
the commissioner
11 the
interesting
and the
outline
Smith v.
expenses
proceedings
paid
shall be
Johnston,
(9
1940).
pauperis proceedings any as to action grant discretionary pow There is no “therein.” course, er to if him. had such Of he it, power and a had declined exercise perceive here no constitution We very pres question different would be deprivation, no on the al arbitrariness here ented.9 Under the circumstances part Commissioner, predi- of the and App.D.C. 273, F.2d 141 And 5. He the Fifth Amendment realizes Habib, supra, compare equal protection further n. Lee v. does contain 416-417, at clause to be found the Fourteenth applicable states, Amendment, at 904-905. but concepts elided, claim treats the two effectively 8. We doubt could ing that, basically, under discrimination circum- contended that one Sharpe, approach. Bolling lies either entitled, fee, stances without would be L. 347 U.S. register an automobile Habib, (1954) ; cf. Lee v. Ed. reg- a all others must Columbia when U.S.App.D.C. 403, 413-414, 424 F.2d Again, Supreme Court istration fee. 901-902 found invidious discrimination has no such indigent invalid as to render we noted existence 6. But Harris provide requiring him to com- right law state to file an action parte liability pulsory Ex insurance. See divorce, rec- had and in the court Poresky, L. ognized which met. Ed. must be Remington ex rel. Coe United States 7. Cf. Miller Inc., App.D.C. Rand, Green, (1942) ; Douglas F.2d 661 Fullam, 1964) ; In re applied generally con- surely be and are without presented, not availa mandamus is has made state a to the conclusion that he has given tion by our order a result for which ble had.13 under consideration must be addressed This authority.12 law-making open him to us to appellant’s petition in claim for carefully us provision.11 the end that we find ourselves relief considera- substitute We failed respects forced have wealth “is not finement of “fundamental for which others must inal case has the constitutional have the state ment of invalidating stitutional Thus the is close fees, hindrance. who is a defendant Supreme classifications that rights counsel scrutiny supply him, germane” poll tax, and pay. and careful liberties,” that the Court has held that In transcript1 voting in a crim- Harper,2 right to affect pay- con- said The order is precious, District Court too to vote “too fundamental” to on a fee. be conditioned Affirmed. Harper indicates that the area of “funda- rights”
mental
is not limited
the as-
sumptions
past.
In
Judge (joining
LEVENTHAL, Circuit
Sniadach3
wage
pre-judgment
the Court invalidated
concurring):
garnishments. The
*5
involves
Boddie case
Judge
opinion,
join in
add-
I
Danaher’s
right
an
civil
of
access
they help
ing
observations because
some
of
courts
a divorce without
deny-
give
perspective
additional
me
fee.4
ing petitioner’s claim of constitutional
By means, however,
the Con-
does
pat-
right,
process a
indigent,
present
embody
require-
stitution
aas
payment of the
egalitarian
sup-
philosophy
ment an
statutory fee.
poses
exactly
put
men
all
can
equal
begin
condition
involv-
Equal protection concepts
all matters
ing
learning
Government. As the
a standard
Judge
indicates,
cited
non-discriminatory;
Danaher
man
ob-
the statute
here
indigency
cannot insist that
viously
estab-
requires
one
lishes
to drive a
requirements also
constitutional
fee. Constitutional
without,
g., paying
car
in-
e.
weak and
cost
dictate that
some matters
required
protection
surance
helpless
relieved
of burdens
(1959) ; Gregoire
1335,
Hull,
U.S.App.D.C. 301,
1434
3 L.Ed.2d
10. Hammond
76
v.
1949),
Biddle,
denied,
579,
303,
23,
177 F.2d
v.
581
25
cert.
949,
803,
777,
830,
U.S.
cert. denied 339
S.Ct.
70
318 U.S.
63 S.Ct.
(1950).
(1943);
Coe,
1363
v.
94 L.Ed.
Proctor & Gamble Co.
cf.
246,
518,
App.D.C.
249,
521
F.2d
68
96
335,
Wainwright,
1. Gideon v.
372 U.S.
(1938).
(1963) ;
792,
ment services.6
Drawing is con- line what between
stitutionally permitted prohibited ongoing process. I think
will be
clear, however, fee in the case of a
required as an incident to Govern- processing request
ment’s for an award monopoly value,
of a commercial right”
is no “fundamental that carves indigent.7 exception
Wilkey, Judge, Circuit dissented opinion. and filed WADE, Appellant, Walker R. America,
UNITED STATES of Appellee.
No. 21922. Appeals,
United States Court of Columbia Circuit.
Argued Sept.
Decided Jan. Rehearing
Petition for Denied March parte Poresky, ing 5. Ex unnecessary 54 S. invidious and hard- ship wrought by Ct. a fee total- ly disproportionate any justified state validity 6. The of a driver’s license fee was interest. It seems obvious that the stat- impliedly Harper, admitted 383 U.S. at utory fees, petitioner, than $100 less 668, 86 make a modest toward the processing that even where some pat- fees are cost to the Government of permissible, applications. could raise There is no contention separate question protest- contrary. before us to the