¶1Involved here are a motion by Cobi to dismiss Eusche’s appeal to this court, and a petition by Eusche for a writ of mandamus directing the Commissioner to grant an extension of Eusche’s time for perfecting said appeal.
¶2A similar situation was involved in our opinion of November 3, 1960, in which both the motion and petition were denied and the case remanded to the Patent Office for further consideration.
¶3It has now been established that a memorandum from the Manuscript Branch of the Patent Office, dated July 11,1960, upon which our first action was based, was erroneously dated and was not actually prepared until July 13, 1960, two days after Eusche’s time for docketing his appeal in this court had expired. Under these circumstances the action of the First Assistant Commissioner in refusing to extend Eusche’s time for docketing the appeal was correct, and dismissal of the appeal is in order.
¶4Cobi’s motion to dismiss is granted. Eusche’s petition for a writ of mandamus is denied.
¶5Smith, J., dissents.