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BALLY MFG. CORP. v. DIAMOND

No. 79-1840.

629 F.2d 955 (1980)

BALLY MANUFACTURING CORP., Appellant, v. Sidney A. DIAMOND, Commissioner of Patents and Trademarks, Appellee.

United States Court of Appeals, Fourth Circuit.

Decided September 2, 1980.

Attorney(s) appearing for the Case

John F. Flannery, Chicago, Ill. (Donald L. Welsh, A. Sidney Katz, Fitch, Even, Tabin, Flannery & Welsh, Chicago, Ill., on brief), for appellant.

Henry W. Tarring, II, Associate Sol., Washington, D.C. (Justin W. Williams, U.S. Atty., Linda B. Bridgeman, Asst. U.S. Atty., Alexandria, Va.; Joseph F. Nakamura, Sol., on brief), for appellee.

John F. Lynch, Sydney M. Leach, Walter R. Brookhart, Arnold, White & Durkee, Houston, Tex., on brief, for amici curiae.

Before RUSSELL, Circuit Judge, HARRY PHILLIPS, Senior Circuit Judge, Sixth Circuit, sitting by designation and Widener, Circuit Judge.

PHILLIPS, Senior Circuit Judge.

Plaintiff-appellant Bally Manufacturing Corp. filed this suit to enjoin the Patent and Trademark Office (PTO) from examining Bally's reissue patent application until the PTO promulgates rules to govern its consideration of unpublished evidence of prior invention by another. The district court dismissed on the grounds Bally had not exhausted its administrative remedies and had failed to establish that examining the reissue application...

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