delivered tbe opinion of tbe Court:
f
; Tbe appellee, Godfrey S. Tait, bas filed a motion to docket and dismiss tbe appeal in tbis case wbicb was taken by Peter G. Sebmidt from a decision of tbe Commissioner of Patents in an interference case.
Tbe decision of tbe First Assistant Commissioner awarding priority to Tait was rendered December 3, 1913. A motion for rebearing was denied by tbe Assistant Commissioner, and notice of appeal was entered January 8, 1914. Tbe record was not filed with tbe clerk of tbis court witbin tbe forty days allowed tberefor by tbe rule, wbicb expired February 28tb.
Pule XV. sec. 1, relating to docketing and dismissing appeals when the transcript shall not have been filed within forty days from the perfection of appeal, was devised to apply to causes tried in the supreme court of the District, and undertaken to be appealed therefrom. Section 6 of rule XXI., relating to appeals from the Commissioner of Patents, reads as follows: “The appeals from the Commissioner of Patents shall be subject to all the rules of this court provided for other cases therein, except where such rules, from the nature of the case, or by reason of special provisions inconsistent therewith, are not applicable.” On an ex parte motion, and without the benefit of argument, we prefer not to determine whether, under the foregoing section, the Commissioner of Patents has the power to grant an extension of the time for filing the record; or whether a party to a cause decided by the Commissioner in his favor that has been appealed therefrom, is entitled to the right to docket and dismiss the appeal as provided in rule XV., for the determination of neither point is essential.
The exhibits attached to the appellee’s motion show that the extension of time was granted after the forty-day period had expired, and presumably upon an application for extension filed thereafter also.
Assuming, without deciding, that the Commissioner may have the power to grant an extension of the time for filing the record, that power, as is the case with the courts, could only be exercised before the expiration of the forty days provided by the rule. The appellant having failed to file his record within the forty days from notice of his appeal, it was the duty of the
Doubtless, the motion for further proceedings will now be granted. For this reason, and also because of the depending motion for rehearing, it is not necessary to determine whether the rule relating to docketing and dismissing appeals applies to decisions of the Commissioner of Patents; and.the motion to that end will be dismissed without prejudice. By referring to the pending motion for rehearing, we are not to be construed as intimating that after the expiration of the forty days from the entry of notice of appeal, the Commissioner has the power to grant a rehearing. That question is not before us.
The motion is dismissed without prejudice. Dismissed.