The opinion
KIRKPATRICK, Judge
(concurring).
I agree with the reasoning and conclusions of the majority but I think that I should state briefly the considerations which have influenced my decision.
Unless I have missed the point of the dissenting opinions as well as the appel *668 lants’ argument, the principal ground upon which my dissenting colleagues would reverse the board’s decision is a two-pronged discovery by the appellants that a problem existed in the art and the cause of the problem. It is of course well recognized that the existence of a problem in an industry and its solution by the applicant for a patent may afford evidence on which patentability may be grounded. In Graham v. John Deere Co. of Kansas City, 383 U.S. 1 , 86 S.Ct. 684 , 15 L.Ed.2d 545 , the Supreme Court spoke of the circumstances under which those facts may be taken as evidence of nonobviousness. The Court referred to them as “secondary considerations” and specified “long felt but unsolved needs, [and] failure of others.”
The difficulty with the appellants’ case now before us is the lack of adequate evidence to bring his application within the rule. There is nothing to show that the “problem” which the appellants claim to have solved is anything other than the perennial problem present in every industry, namely, how to improve the quality of the product or to make the process of manufacture more efficient. Certainly the mere fact that an applicant for a patent has succeeded in making an improvement in product or process is never of itself evidence of nonobviousness. It must appear that what he has done is not within the skill of the ordinary practitioner of the art. Here nothing has been offered to show that any problem other than the problem of how to improve the product and process existed.
It seems to me that if the appellants in this case wished to predicate patentability on the discovery of the existence of the problem in the art, it was incumbent upon them to furnish more evidence than is present in the record here to show that the industry ever had the slightest concern about any alleged problem or that anyone ever tried to solve it. It would seem that if a worker skilled in the art set about improving the fire retardant composition and method of manufacture which is the subject of the application, it would be an obvious step to ascertain if and to what extent impurities existed in the materials used in the process and then to purify. I do not think that the few vague statements in the appellants’ specification and the rather uninformative reference to a chemical encyclopedia constitute evidence upon which a finding of patentability can be made.