Application of John W. Hession, Jr

To the extent this case involves what has been termed “the doctrine of election,” I agree with the dissenting opinion written by Judge Rich. In my opinion, however, this ease does not present an issue of “election,” 1 but presents in*956stead a more fundamental issue, namely, to what extent can a rule of administrative expediency such as Patent Office Rule 78(b) be employed by the Commissioner of Patents to avoid the duties expressly imposed on him by 35 U.S.C. § 135. The more precise issue here being whether under the circumstances of this ease the Commissioner of Patents, by the promulgation…