In re Bass

Lane, Judge,

concurring.

I concur in the result reached by both Judge Rich and Judge Baldwin in this case. I affirm the rejection of claims 2,3,4 and 5 as obvious under § 103 in view of Reiterer and Fuji. I reverse the rejection of claims 1, 6, 7, 8 and 9 on Bass combined with Fuji and Jenkins. I agree with Judge Rich that there is no substantial evidence of record tending to indicate priority in Bass and I therefore exclude Bass from consideration as prior art here in passing on the obviousness rejection of these claims.

Both Judge Rich and Judge Baldwin have expounded at great length on whether or not § 102(g) makes available as prior art within the meaning of § 103 the prior invention of another who has not abandoned, suppressed or concealed it. In my opinion, the inconsistent conclusions of these judges on this point constitute statements of law which I consider not necessarily involved nor essential to the disposition of this appeal. However, since the particular court which heard this appeal argued is obviously divided on this proposition, as evident from the extensive treatment accorded it in both opinions, I deem it advisable for me to make of record my view that the prior invention of another who had not abandoned, suppressed, or concealed it, under the circumstances of this case which include the disclosure of such invention in an issued patent, is available as “prior art” within the meaning of that term in §103 by virtue of § 102(g).