The opinion
SMITH, Judge
(concurring).
“A system of procedure is perverted from its proper function when it multiplies impediments to justice without the warrant of clear necessity. By the judgment about to be rendered, the respondent, caught in a mesh of procedural complexities, is told that there was only one way out of them, and this a way he failed to follow. Because of that omission he is to be left ensnared in the web, the processes of the law, so it is said, being impotent to set him free. I think the paths to justice are not so few and narrow. * * * ” (Mr. Justice Cardozo dissenting in Reed v. Allen, 286 U.S. 191, 209 , 52 S.Ct. 532, 537 , 76 L.Ed. 1054 .)
It is with great reluctance that I concur in the decision in this case. It is shocking to my sense of justice that by statute ( 35 U.S.C. §§ 142 , 143 and 144) this court is rendered “impotent” to aid a party seeking relief and that “the paths of justice” in this court are “so few and narrow.” Because of the controlling statutory provisions, we have no discretion but to deny a decision on the merits of this case because of appellant’s failure to comply with an anachronistic procedural hangover which, as Judge Rich has pointed out, had its origins early in the 19th century, — a time when just such procedural technicalities threatened to make a farce out of the administration of justice by the judicial system. I cannot conceive of any present necessity for a statutory requirement which requires that “reasons of appeal” be filed at the time a notice of appeal is filed in the Patent Office. I regret that Congress has not expunged this requirement from 35 U.S.C. §§ 142 , 143 and 144 so that the practice in this court can follow the modern procedural practices permitted in other Federal courts, 1 to the end that we too may embrace the philosophy stated by Mr. Justice Frankfurter in Indianapolis v. Chase National Bank, Trustee, 314 U.S. 63, 69 , 62 S.Ct. 15, 16, 17 , 86 L.Ed. 47 , that “Litigation is the pursuit of practical ends, not a game of chess.”
My dislike for the necessity, under 35' U.S.C. § 144, of disposing of the present appeal because of appellant’s failure to comply with the technicalities of 35 U. S.C. § 142 is based on the essential unfairness in a procedure by which a litigant can be put to the time and expense' of perfecting, briefing and arguing an appeal only to find it is doomed to dismissal because of his initial failure to comply with the statutorily sanctioned nicety requiring “reasons of appeal.” This is particularly appalling in a case such as the-present where this failure was ignored by the other party 2 until the case was ready for decision on its merits, and so far as I am able to determine, without, any detriment to its position.
*471 There is, however, another important reason why a decision such as the present should be abhorrent to all those interested in the orderly and speedy administration of justice. This case has consumed already as much or more of the time of the judges of this court than it would have consumed to determine the appeal on its merits; it has required many hours of study, legal research and deep “soul searching” by all judges, and all to what purpose ? Simply to be forced to say that since appeals to this court are governed by 35 U.S.C. §§ 142 and 144 3 and since it is not our function to legislate, we can do nothing here but apply the governing statutory provisions. If the statutory provisions are allowed to stand, this court will be required necessarily to continually warn the bar through hard decisions, such as I consider the present one to be, of the built-in “booby trap” which 35 U.S.C. §§ 142 and 144 provide for the unwary litigant.
While I question whether the absence of reasons of appeal here is a “jurisdictional defect” which can be raised at any time, 4 my views in this regard are necessarily subordinate to the long line of contrary decisions of this court upon which the majority of the court relies in its application of the statute. Unfortunately for the appellant here, I have been unable to find any authority in the Federal Rules of Civil Procedure which would permit this court to ignore the current statutory provisions requiring reasons of appeal. It is my hope, however, that a decision such as the present may provide the incentive required to bring about a re-examination of the limiting statutory provisions and perhaps result in the enactment of such changes therein that the practice in this court may at last reflect the enlightened procedural reforms which our sister Federal courts were free to adopt some years ago. 5
One has but to read the decisions in the numerous cases which have been dis *472 missed by this court for failure of the appellant to state what the court considered to be sufficient reasons of appeal in compliance with 35 U.S.C. § 142 to appreciate the real importance of this problem to litigants. 6 In my brief service on this court I have been amazed at how many times representatives of the Patent Office have raised this technical point at oral argument.
If, in fact, a Notice of Appeal fails to state a ground for appeal, it seems to me the least that should be required is that the defect be brought to the attention of the court by a motion timely made rather than to encourage perpetuation of the present tactical procedures.
I feel now, as I have in several prior cases, that liberality in the interpretation 7 of 35 U.S.C. § 142 may enable us to handle some of these situations. However, where, as here, the Notice of Appeal filed with the Commissioner gives us absolutely nothing upon which to exercise our right to “interpret” this section, we are effectively prevented from acting on the merits of the appeal and have no alternative but to deny the relief sought.
As I have stated previously, I would like to be able to consider a defective “Notice of Appeal,” such as is here present, to be at most a procedural defect which is corrected by the subsequent Petition of Appeal in this court and the complete statement of reasons for the appeal which are found in appellant’s brief. I would like also to be able to hold that the defects in the original Notice of Appeal are waived by the failure of the Patent Office to raise the question at an earlier point in the procedure. However, as pointed out by Judge Rich in his concurring opinion, prior decisions of this court have construed such a defect to be a “jurisdictional” defect which may be raised at any time. While I would have no objection to overruling these cases if we could thereby get rid once and for all of this troublesome problem, it seems to me that this entire matter has now reached the point where it becomes the function of the Congress rather than of this court to do what should be done to change the controlling statutory provisions.
. Since the decision of Glidden Company v. Zdanok et al., (decided together with Lurk v. United States), 370 U.S. 530 , 82 S.Ct. 1459 , 8 L.Ed.2d 671 , it is clear that it would be desirable to establish the practice and procedure before this court as consistent as is possible with the Federal Rules of Civil Procedure which govern other “Article HI courts.”
. While the present case is an ex parte appeal, there is a very real “other party” here represented by the solicitor of the Patent Office.
. See Administrative Agencies and the Courts, Frank E. Cooper, (University of Michigan, 1951), pp. 330-332.
. Under the Federal Rules of Civil Procedure, I am certain the defect in the “notice of appeal” here would not be so considered. In Foman v. Davis, 371 U.S. 178 , 83 S.Ct. 227 , Mr. Justice Goldberg said:
“The defect in the second notice of appeal did not mislead or prejudice the respondent. With both notices of appeal before it (even granting the asserted ineffectiveness of the first), the Court of Appeals should have treated the appeal from the denial of the motions as an effective, although inept, attempt to appeal from the judgment sought to be vacated. Taking the two notices and the appeal papers together, petitioner’s intention to seek review of both the dismissal and the denial of the motions was manifest. Not only did both parties brief and argue the merits of the earlier judgment on appeal, but petitioner’s statement of points on which she intended to rely on appeal, submitted to both respondent and the court pursuant to rule, similarly demonstrated the intent to challenge the dismissal.
“It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities. ‘The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.’ Conley v. Gibson, 355 U.S. 41, 48 [ 78 S.Ct. 99 , 2 L.Ed.2d 80 ]. The Rules themselves provide that they are to be construed ‘to secure the just, speedy, and inexpensive determination of every action.’ Rule 1.”
. Rule 73(b) Federal Rules of Civil Procedure, 28 U.S.C., provides, in part as applicable, that:
“Notice of Appeal. The notice of appeal shall specify the parties taking the appeal; shall designate the judgment or part thereof appealed from; and shall name the court to which the appeal is taken. * * * ”
Rule 75(d), F.R.C.P., provides:
“Statement of Points. No assignment of errors is necessary. If the appellant does not designate for inclusion the complete record and all the proceedings and evidence in the action, he shall serve with his designation a concise statement of the points on which he intends to rely on the appeal. * * * ”
. See Judge Rick’s exhaustive concurring opinion.
. See footnote 3.