Later courts went against this
Overruled in part, on other grounds by In re Smith, 458 F.2d 1389 (1972)
378 F.2d 948, 955-56, 54 CCPA 1495, 154 USPQ 1, 7 (1967), overruled in part on other grounds by In re Smith, 458 F.2d 1389, 1395, 59 CCPA 1025, 173 USPQ 679, 683 (1972).
The opinion
SMITH, Judge
(concurring).
The record shows that the Board of Appeals here consisted of an examiner-in-chief and two acting examiners-in-chief. Appellants do not challenge the legality of that board. For the reasons expressed in my dissenting opinion in In re Wiechert, 370 F.2d 927 , 54 CCPA 957, the decision of such a board in my view is a legal nullity. However, I must accept the majority’s view on this issue in the Wiechert case, i. e., the legality of the board is not an issue here. I therefore participate in the merits of this appeal and in so doing, agree with the conclusion of the majority.