The opinion
BALDWIN, Judge,
(concurring).
I fully agree with the majority’s disposition of this ease, and merely wish to add some further observations.
Insofar as appellants’ motion was based on alleged defects in appellees’ reissue oath, said motion amounted to a motion to dissolve on the basis that the counts are unpatentable to the applicants (appellees). Such a motion is apparently permitted under Patent Office Rule 231(a), and Rule 231(d) provides in pertinent part:
(d) All proper motions as specified in paragraph (a) of this rule * * * will be transmitted to and considered by the primary examiner * * *
While Rule 231(d) does not specify when such motions are to be transmitted, it is obvious that if the rule is to mean anything, transmittal must take place prior to termination of the interference. The appropriate procedure in this case would have been to transmit the reissue oath phase of the motion to the primary examiner directly rather than deferring it to final hearing. After final hearing, the board was not precluded from ruling on the ancillary question of appellees’ right to make merely because of the presence of this reissue oath phase of the motion in the case. However, I am of the opinion that the board should have transmitted the motion to the primary examiner prior to termination of the interference proceedings in the Patent Office. While the motion might also have been handled by a recommendation under Rule 259, the board found that the circumstances of this case did not warrant such a recommendation.
I agree with the majority that appellees’ application supports the counts and *1196 that initiation of any efforts to remedy the mistreatment of the reissue oath question should be done in the Patent Office. Thus I concur in the affirmance of the decision of the board.