of the Supreme Court of the District of Columbia, who sat with the Court in the hearing- and determination of the appeal in the place of Mr. Justice Nobis, delivered the opinion of the Court:
The examiner based his decision upon the ground that Martin was estopped by laches to make the claims of the present application, because he failed to move under the rule 109 of the Patent Office to be allowed to amend and bring those claims into the Dyson interference, but that if there were no estoppel by reason of laches he was estopped by the judgment of priority in that interference. The Board of Examiners in Chief and the Commissioner placed their decision entirely on the ground of estoppel.
There was no judgment of priority in the Dyson interference in favor of Goodrum against Martin; consequently, there can be no estoppel by judgment.
Assuming that Martin should have moved under rule 109, his failure to do so is not shown to have resulted in injury to anyone; therefore, one of the elements necessary to an estoppel is absent.
The decision of the Commissioner of Patents is reversed, and the clerk is directed to certify these proceedings as by law required.