considering whether an element of a patented combination has no practical use other than in the practice of the invention
How later courts described this case
- considering whether an element of a patented combination has no practical use other than in the practice of the invention
Written by the judges who cited it.
The opinion
WHITAKER, Judge
(dissenting).
I agree with Judge Laramore that there is substantial evidence to support the findings of the Secretary of the Army, whether the Secretary acted on the recommendation of the Disability Review Board or of the Correction Board. In all of these cases the question for our determination is whether or not the action of the Secretary is arbitrary or capricious, or not supported by substantial evidence. In cases such as the one at bar he ordinarily acts through the Correction Board, but the law does not require him to withhold action until the Correction Board acts, nor to adopt the findings of the Correction Board. In this case he chose to follow the advice of the Disability Review Board without awaiting formal action by the Correction Board. I think this was within his province.
Since I agree with Judge Laramore that there is substantial evidence to support the findings of the Disability Review Board and the action of the Secretary, I think we have no jurisdiction to entertain plaintiff’s petition, because the law vests in the President, acting through the Secretary, authority to determine whether or not an officer shall be retired for physical disability, and I cannot say that he acted arbitrarily or contrary to the evidence. Only if the Secretary’s action was arbitrary or capricious can we set aside his action and render that judgment he should have rendered.
But, the court having found that we have jurisdiction and being of the opinion that plaintiff is entitled to retirement for physical disability, I think he is en *849 titled to recover from the date of the action of the original Retiring Board, because plaintiff’s application to the Correction Board was to correct his record so as to show that he was physically disabled at the time of his retirement. Had the Retiring Board found that he was disabled at the time of his retirement, as the court now holds it should have found, he would have been entitled to recover his pay from that date, and I think we should award him judgment from that date.