delivered the opinion of the Court:
Under the practice of this court the Commissioner is permitted to appear by counsel in ex parte appeals. His counsel concurs in the motion of Emmet to change the docket entry, and to he recognized as appellee, contending that he is a proper party to the appeal.
The jurisdiction of this court to entertain appeals from de*228cisions of the Commissioner of Patents, in proceedings relating to patents, is limited to two classes of cases. The first is where the claims of an applicant for a patent or the reissue of a patent, after having been twice rejected, have been finally rejected on an appeal to the Commissioner in due course of procedure. The second is where, on an appeal to the Commissioner in an interference proceeding, there has been a final decision of priority in favor of one of the parties thereto, ftev. Stat. sees. 4909-4911, IT. S. Comp. Stat. 1901, pp. 3390, 3391; Westinghouse v. Duncan, 2 App. D. C. 131, 132; Allen v. United States, 26 App. D. C. 8, 17, 26; Union Distilling Co. v. Schneider, 29 App. D. C. 1. The case last cited arose under sec. 9 of the trademark act approved February 20, 1905, in an interference case between applicants for the registration of trademarks, the procedure in which is similar to patent interferences.
The question for determination on this motion is whether these appeals come within either of the above-named classes.
The recital of the Commissioner’s decisions shows that interferences were declared between reissue applications of Fullagar and original applications of Emmet, in which motions to dissolve were made by each party. Fullagar’s motions were denied by the Primary Examiner to whom they were referred, and Emmet’s were sustained on two grounds. Fullagar appealed to the Examiners-in-Chief, who differed with the Primary Examiner on all points save one, but affirmed his decision on the ground that Fullagar’s showing of inadvertence, accident, or mistake was insufficient, and failed to excuse his long delay of more than two years in each ease. On appeal by both parties to the Commissioner, as shown by his decision, he dismissed Emmet’s appeal as without foundation, and affirmed the decision of the Examiners-in-Chief as to Fullagar. He also stated, it is true, that Fullagar had no right to make the claims; but this remark is evidently as a result of the conclusion that Fullagar had failed to show that he had come within the requirements for reissue. Had he held that Fullagar had made a sufficient showing for reissue, and then decided that he had no *229right to make the claims of the interference, because not disclosed in his application, he would necessarily have awarded priority to Emmet. United States ex rel. Newcomb Motor Co. v. Moore, 30 App. D. C. 464. The latter’s application having been allowed, and Eullagar having been put out of the case, there would remain nothing else to do.
It is now settled that the right of either party to make the claim- of the interference issue may be urged, and brought up as an ancillary question necessarily involved in that of priority. Podlesak v. McInnerney, 26 App. D. C. 399, 405. In that case it was said by Mr. Justice Duell: “The question of the right of a party to make a claim goes to the very foundation of an interference, for, if a party has not such right, the interference falls. If it be incorrectly held that such party has a right to make the claim, priority may be awarded to him, and his adversary be deprived of a substantial right in that he is not given a claim where he necessarily is the prior inventor, his adversary never having made the invention. Manifestly that question should not be finally determined by the Primary Examiner who originally declared the interference. We therefore take the jurisdiction to determine that question in this case as an ancillary question to be considered in awarding priority of invention.”
If the Commissioner had decided that Eullagar was not entitled to make the claim under his application,, and had, in consequence, awarded priority to Emmet, Eullagar would have the right to appeal, bringing Emmet up for a final adjudication of the question of priority in this court. Instead of so deciding, the effect of his decision was to set aside the allowance of Eullagar’s application as an entirety, and dissolve the interference. No award of priority was made in favor of Emmet. He was not declared entitled to the patent, nor was his application rejected. He had nothing from which he could appeal. All that was left to him was to renew his demand for a patent, ex parte, which will be ultimately allowed, there being no ground for further declaration of interference with Eullagar, unless some additional reference be found to bar his right. As there was no *230final decision in Emmet’s favor, it follows that Eullagar could not bring him before this court by an appeal. If Eullagar has any right to appeal at all, it is by way of an ex parte appeal under sec. 4911, Bev. Stat., on the ground that the decision is in fact the final rejection of his application.
We are clearly of the opinion that Emmet, then, has no standing in this court as a party to the appeal, and his motion to appear and have the docket entry changed must be denied. It follows, therefore, that he has no right to move to dismiss Fullagar’s appeal.
But Eullagar’s right to appeal ex parte from the Commissioner’s decision involves a question of jurisdiction which the court must consider of its own motion.
It is not pretended that this is a regular ex parte proceeding upon an application for a patent that has been rejected. Instead of being rejected it was allowed by the Primary Examiner, and might have proceeded to issue had there been no interference with another allowed application. It came before the Commissioner in that interference, and the right to appeal is founded on the character and effect of his decision therein. But we cannot recognize the right of the Commissioner, if he so intended, to convert an interference case into an ordinary proceeding by one party upon an application for a patent, which he concludes to reject without an award of priority to the other party. The statute prescribes the procedure in the case of an application for a patent and for the reissue of a patent. If the application be rejected by the Primary Examiner, he must give notice of the same, with the grounds of his rejection, to the applicant, who has the right to answer' the objections, or obviate them if possible, and to persist in his application. In that event he is entitled to a re-examination of his application. Bev. Stat. sec. 4903, IJ. S. Comp. Stat. 1901, p. 3389. He has no right to appeal from the first rejection, but must await the re-examination and a second rejection thereafter. Of course, no interference can be declared in such a ease until there has been an allowance.
After the second rejection he can appeal to the Examiners-*231in-Chief and in succession to the Commissioner and to this court. Rev. Stat. secs. 4909-4911. The conditions of the statute conferring the right of appeal must be observed, and the procedure it prescribes must govern the proceedings throughout.
As the proceedings in this case are not in compliance with the. statute, we are constrained to hold that this court has no jurisdiction of the appeal.
Upon the return of the case to the Patent Office, Pullagar will be entitled to have his application remanded for re-examination; and, if again rejected, he will be entitled to his successive appeals, in due course, if it should become necessary to resort thereto.
In accordance with these views, the appeals will be dismissed. It is so ordered, and that this decision be certified to the Commissioner of Patents as the statute requires. Dismissed.