Interference No. 103,586) MARIANO BARBACID and VEERASWAMY MANNE v. MICHAEL S. BROWN, JOSEPH L. GOLDSTEIN, and YUVAL REISS

NOTE: This order is nonprecedential
United States Court of Appeals for the Federal Circuit
2007-1121
(Interference No. 103,586)
MARIANO BARBACID and VEERASWAMY MANNE,
Appellants,
v.
MICHAEL S. BROWN, JOSEPH L. GOLDSTEIN, and YUVAL REISS,
Appellees.
ON MOTION
Before BRYSON, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and PROST, Circuit
Judge.
PROST, Circuit Judge.
O R D E R
Michael S. Brown, Joseph L. Goldstein, and Yuval Reiss (“Brown”) move to
dismiss Mariano Barbacid and Veerswamy Manne’s (“Barbacid”) appeal from the Board
of Patent Appeals and Interferences for lack of jurisdiction. Barbacid opposes. Brown
replies.
On June 5, 2006, the Board issued its “Final Decision on Second Remand from
the Federal Circuit,” awarding Brown priority. Brown received the Board’s decision on
June 26, 2006. Barbacid alleges that he was not provided notice of the June 2006
decision.
On September 17, 2006, the senior administrative patent judge on the appeal
sua sponte issued an “Order (Entry of Final Decision).” Although Brown had received
the Board’s decision, the judge’s order noted that it had “come to the attention of the
Board that neither party nor its counsel received a copy of the final decision” because “it

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had never been mailed.” The judge “re-mailed” the Board’s June 2006 decision and
ordered that “[t]he time for seeking rehearing or judicial review runs from the date of this
Order.”
On November 17, 2006, Barbacid filed an appeal seeking review by this court.
The appeal was filed more than two months after the Board’s June 2006 decision.
Although the appeal was filed within two months of the September 2006 order, Barbacid
does not seek review of that order. Brown argues that dismissal of the appeal is
required because the appeal was not filed within the time prescribed by regulation.
Under 37 C.F.R. § 1.304(a), the time for filing the appeal to this Court is two
months from the date of the decision of the Board. The time is not measured from the
date of receipt of the Board’s decision but from the date of the decision itself. See also
35 U.S.C. § 141 (appeal must be filed “within such time after the date of the decision
from which the appeal is taken as the Director prescribes, but in no case less than 60
days”).
Barbacid argues that Brown never objected or contested the September 2006
order below. This is not relevant to the timeliness issue, as jurisdiction cannot be
conferred on this Court by waiver or acquiescence. In re Alappat, 33 F.3d 1526, 1530
(Fed. Cir. 1994) (citing Coastal Corp. v. United States, 713 F.2d. 728, 730 (Fed. Cir.
1983). Instead, we must always inquire into our jurisdiction to hear an appeal. Special
Devices, Inc. v. OEA, Inc., 269 F.3d 1340, 1342 (Fed. Cir. 2001).
Barbacid contends that the appeal should not be dismissed when his untimely
appeal was the result of his asserted failure to receive the Board’s decision. However,
the duty to monitor the status of the case falls on Barbacid. See, e.g., Witty v. Dukakis,
3 F.3d 517, 521 (1st Cir. 1993) (affirming denial of attorney fees application due to
untimeliness and rejecting argument that the application was not untimely because the

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appellants did not receive notice of entry of judgment; “parties to an ongoing case have
an independent obligation to monitor all developments in the case”).
Further, we note that the Director has prescribed by regulation a procedure to
request an extension of time to file a notice of appeal. See 37 C.F.R. § 1.304(a)(3)(ii)
(“The Commissioner may extend the time for filing an appeal . . . [u]pon written request
after the expiration of the period for filing an appeal . . . upon a showing that the failure
to act was the result of excusable neglect.”). Here, this procedure was not followed.
Therefore, because Barbacid’s appeal was filed more than two months after the
Board’s June 2006 decision, we must dismiss this appeal.
Accordingly,
IT IS ORDERED THAT:
(1) Brown’s motion is granted.*
(2) Each side shall bear its own costs.
FOR THE COURT
March 19, 2007 /s/ Sharon Prost
Date Sharon Prost
Circuit Judge
cc: Steven W. Parmelee, Esq.
David L. Parker, Esq.
s19
ISSUED AS A MANDATE: ______________________
* The Court is dismissing the appeal without prejudice to Barbacid making a written
request for an extension of time pursuant to 37 C.F.R. § 1.304(a)(3)(ii).

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