441 F.2d 1041 | D.C. Cir. | 1971
Lead Opinion
This appellant on April 20, 1967, tendered to the Commissioner an application for a patent which the Patent Office declined to file since the application was not accompanied by the $95 filing fee required by law. Appellant thereupon sought an order in the nature of mandamus to compel the Commissioner to accept and examine his patent application without payment of the statutory filing fee or, alternatively, that he be
35 U.S.C. § 111 provides that an application for patent shall include a specification as prescribed by § 112, a drawing as prescribed by § 113, an oath as prescribed by § 115 and concludes, the “application must be signed by the applicant and accompanied by the fee required by law.” (Emphasis added.)
I
None of various grounds for reversal urged upon us requires extended discussion, for we deem to be controlling as a necessary conclusion that appellant had failed to state a claim upon which relief could be granted. The district judge correctly so perceived, and we are bound to affirm his order of dismissal. It seems clear enough that the “Commissioner shall charge” (emphasis ours) the fees as specified in 35 U.S.C. § 41.
No person has a vested right to a patent, see McClurg v. Kingsland, 42 U.S. (1 Howard) 202, 206, 11 L.Ed. 102 (1843), but is privileged to seek the protected monopoly only upon compliance with the conditions which Congress has imposed. That rule applies to the payment of fees required for the administration of the patent laws just as it demands compliance with other conditions, statutorily imposed. Certainly the powers of Congress in the patent law field are plenary for they stem directly from the Constitution.
II
But, the appellant argues, granting that Sections 41(a) and 111 are not unconstitutional on their face, the Commissioner’s treatment of the appellant’s patent application brings it about “that poor
Thus, he asks us to order the Commissioner to proceed with the examination of his application, even though he has not paid the fee prescribed by Congress and although Congress has accorded no authority to the Commissioner to waive the prescribed payment.
We perceive here no constitutional deprivation, no arbitrariness on the part of the Commissioner, and no predicate for the appellant’s claims. Accordingly, we decline to enter the order the appellant seeks. Rather, we do say that Congress has granted a privilege, open to all, and has created no requirements which can be said to be unnecessary to what Congress in the exercise of its plenary power deems essential to the effective working of the patent system. Obviously, there are differences in the economic circumstances of our citizenry which exist quite apart from any exercise of the privilege which Congress has conferred. Congress simply has here done nothing to alleviate the consequences of those differences.
This applicant in effect has asked this court to order discrimination in his favor. He asks to be permitted without charge to do what all others must pay for.
III
To recapitulate, it is apparent that the duty of the Commissioner stems from a clear statutory requirement. There is no grant of discretionary power to him. Of course, if he had such power and had declined to exercise it, a very different question would be presented.
This appellant’s petition in the respects under consideration must be addressed to the law-making authority.
The order of the District Court is
Affirmed.
. Despite the inartful pleading, we are satisfied that the appellant showed he was authorized to proceed in the District Court pursuant to 28 U.S.C. § 1915(a), Sikora v. Brenner, 126 U.S.App.D.C. 357, 359, 379 F.2d 134, 136 (1967), and that the court had jurisdiction of the action pursuant to 28 U.S.C. § 1338(a). The Commissioner’s action here we take to he final. Cf. Commissioner of Patents v. Whiteley, 71 U.S. (4 Wall.) 522, 533, 18 L.Ed. 335 (1866). See generally, Adkins v. E. I. Du Pont De Nemours & Co., 335 U.S. 331, 69 S.Ct. 85, 93 L.Ed. 43 (1948) and the interesting outline in Smith v. Johnston, 109 F.2d 152 (9 Cir. 1940).
. The appellant has made no contention that he is entitled somehow to financial assistance in complying with the intricate requirements of 35 U.S.C. §§ 112, 113 and 114 to the extent applicable. Compare Leighton v. Coe, 76 U.S.App.D.C. 212, 130 F.2d 841 (1942) where an in forma pauperis applicant sought an allowance for expenses to appear in the district court then reviewing Patent Office proceedings. We there observed that the court made no such allowance for it had no power under the statutes to do so.
. “Shall” is the language of command, Escoe v. Zerbst, 295 U.S. 490, 493, 55 S.Ct. 818, 79 L.Ed. 1566 (1935) as Mr. Justice Cardozo observed for a unanimous court. And see the discussion by Mr. Justice Stone in Richbourg Motor Co. v. United States, 281 U.S. 528, 534, 50 S.Ct. 385, 74 L.Ed. 1016 (1930).
We may note in passing that 35 U.S.C. § 145 in authorizing a civil action against the commissioner provides that “[a] 11 the expenses of the proceedings shall be paid by the applicant.” (Emphasis added). See Robertson v. Cooper, 46 F.2d 766, 769 (4 Cir. 1931) and Watson v. Allen, 107 U.S.App.D.C. 25, 274 F.2d 87 (1959).
. As to other comparable instances see Currin v. Wallace, 306 U.S. 1, 13-14, 59 S.Ct. 379, 83 L.Ed. 441 (1939) and Detroit Bank v. United States, 317 U.S. 329, 337-338, 63 S.Ct. 297, 87 L.Ed. 304 (1943).
. He realizes that the Fifth Amendment does not contain the equal protection clause to be found in the Fourteenth Amendment, applicable to the states, but treats the two concepts as elided, claiming that, basically, discrimination underlies either approach. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954); cf. Lee v. Habib, 137 U.S.App.D.C. 403, 413-414, 424 F.2d 891, 901-902 (1970).
. But in Harris we noted the existence of a statutory right to file an action for divorce, and in Griffin the court had recognized a constitutional requirement which must be met.
. Cf. Miller v. United States, 317 U.S. 192, 198, 63 S.Ct. 187, 87 L.Ed. 179 (1942); Douglas v. Green, 327 F.2d 661 (6 Cir. 1964); In re Fullam, 80 U.S. App.D.C. 273, 152 F.2d 141 (1945). And further compare Lee v. Habib, supra, n. 5, 137 U.S.App.D.C. at 416-417, 424 F.2d at 904-905.
. We doubt that it could effectively be contended that one in appellant’s circumstances would be entitled, without fee, to register an automobile in the District of Columbia when all others must pay a registration fee. Again, the Supreme Court has found no such invidious discrimination against an indigent as to render invalid a state law requiring him to provide compulsory liability insurance. See Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L. Ed. 152 (1933).
. Coe v. United States ex rel. Remington Rand, Inc., 65 App.D.C. 387, 84 F.2d 240 (1936).
. Hammond v. Hull, 76 U.S.App.D.C. 301, 303, 131 F.2d 23, 25 (1942), cert. denied, 318 U.S. 777, 63 S.Ct. 830, 87 L.Ed. 1145 (1943); cf. Proctor & Gamble Co. v. Coe, 68 App.D.C. 246, 249, 96 F.2d 518, 521 (1938).
. Compare Brenner v. Ebbert, 130 U.S.App.D.C. 168, 170, 398 F.2d 762, 764, cert. denied 393 U.S. 926, 89 S.Ct. 259, 21 L.Ed.2d 262 (1968).
. Policy questions in this field are singularly the concern of Congress. United States v. Dubilier Condenser Corp., 289 U.S. 178, 198, 53 S.Ct. 554, 77 L.Ed. 1114 (1933).
. His claim for money damages is frivolous. Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1896); Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); Gregoire v. Biddle, 177 F.2d 579, 581 (2 Cir. 1949), cert. denied 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950).
Concurrence Opinion
(joining and concurring):
I join in Judge Danaher’s opinion, adding some observations because they help give me additional perspective for denying petitioner’s claim of constitutional right, as an indigent, to process a patent application without payment of the statutory fee.
Equal protection concepts begin with the requirement of a standard that is non-discriminatory; here the statute obviously requires one and all to pay the fee. Constitutional requirements also dictate that in some matters the weak and helpless be relieved of burdens that may be and are applied generally without constitutional hindrance.
Thus the Supreme Court has held that an indigent who is a defendant in a criminal case has the constitutional right to have the state supply him, without payment of fees, counsel and a transcript
By no means, however, does the Constitution embody as a present requirement an egalitarian philosophy that supposes that all men can be put in exactly equal condition as to all matters involving the Government. As the learning cited by Judge Danaher indicates, a man cannot insist that his indigency establishes a constitutional right to drive a car without, e. g., paying the cost of insurance required for the protection of
Drawing the line between what is constitutionally permitted and prohibited will be an ongoing process. I think it clear, however, that in the case of a fee required as an incident to the Government’s processing a request for an award of a monopoly of commercial value, there is no “fundamental right” that carves a constitutional exception for the indigent.
. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956).
. Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966).
. Sniadach v. Family Fin. Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969).
. On appeal from Boddie v. Connecticut, 286 F.Supp. 968 (D.Conn., 3-judge court, 1968), the Supreme Court noted probable jurisdiction, 395 U.S. 974, 89 S.Ct. 2138, 23 L.Ed.2d 763 (1969).
. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933).
. The validity of a driver’s license fee was impliedly admitted in Harper, 383 U.S. at 668, 86 S.Ct. 1079.
. It may be that even where some fees are permissible, an indigent could raise a separate constitutional question protesting an invidious and unnecessary hardship wrought by a fee requirement totally disproportionate to any justified state interest. It seems obvious that the statutory fees, less than $100 for petitioner, make only a modest payment toward the cost to the Government of processing patent applications. There is no contention before us to the contrary.