UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: July 13, 1972.
HERWARD A. VOGEL AND MINNESOTA MINING AND MANUFACTURING COMPANY, APPELLANTS,
MICHAEL EDWARD BENET JONES AND IMPERIAL CHEMICAL INDUSTRIES LIMITED
Seitz, Chief Judge and Van Dusen and Adams, Circuit Judges.
Author: Per Curiam
Opinion OF THE COURT
The parties to this appeal seek to be named first inventor of certain moldable plastic compositions in administrative proceedings pending in the United States Patent Office under 35 U.S.C. § 135 (Interference Nos. 96,167 and 96,500).*fn1 By opinion and order of February 8, 1972, the district court dismissed as moot this ancillary action brought by plaintiffs, pursuant to 35 U.S.C. § 24, to secure discovery for use in such proceedings. Although considerable delay in the determination of this action has unfortunately resulted from the prior appeals (see Vogel v. Jones, supra), the appeals cited in note 4 below, and this appeal, and despite some concern regarding the manner in which this August 1970 action was handled in the district court following the remand of the case to it in June 1971, we have concluded, after a careful review of the record, that the abovementioned district court order was not erroneous.*fn2
Under the circumstances presented by the record in this appeal, where the Assistant Commissioner of Patents has repeatedly made clear*fn3 that plaintiffs had no right to take testimony in this interference proceeding and hence production of evidence by ancillary discovery proceedings was moot, the February 8, 1972, district court order will be affirmed.*fn4