The opinion
LenROOt, J.,
specially concurring:
I concur in the conclusion reached because, in my opinion, the Patent Office tribunals erred in holding that appellee had the right to move to dissolve the interference upon the ground of estoppel against appellant after the motion period for motions of this character had expired.
The Examiner of Interferences held that the issue of estoppel was a jurisdictional question and could be presented at any time, citing in support thereof the case of Sundstrand v. Gubelmann, 55 App. D. C. 200. In my opinion the decision in said case was clearly erroneous and should not be followed.
The motion to dissolve the interference upon the ground of estop-pel against appellant should not have been entertained and, as the record shows that appellant was the first inventor, priority of invention should have been awarded to him. As appellee could not, under the rules of the Patent Office, raise this question after the motion period had expired, any question of estoppel against appellant should be decided ex parte after the termination of the interference.
I point out the anomaly of the position of the Patent Office tribunals in holding that the question of estoppel was jurisdictional and nevertheless proceeding to an award of priority. If this was jurisdictional, the interference should have been dissolved, for it is elementary that when a court finds it has no jurisdiction of a case it may not proceed to a decision upon the merits.
The question of the right of appellee to make the motion to dissolve lies at the threshold of this case, and its proper disposition made it unnecessary to consider the question of whether an estoppel in fact existed against appellant. Inasmuch as the majority opinion expressly reserves decision upon the above question, I will not here discuss it further.
I therefor concur in the conclusion without expressing any agree - ment with the reasons given by the majority for its conclusion.