The opinion
SMITH, Judge
(dissenting).
We face here another in the long series of decisions by a board consisting *1023 of but one duly appointed examiner-in-chief. While I remain in the minority on the issue of the legality of the decisions rendered such boards, see In re Wiechert, 370 F.2d 927 , 54 CCPA 957 (1967), I feel, for the reasons expressed in my dissent therein, that the continued practice of hearing appeals before boards of appeal so constituted is fundamentally wrong. Not only does this practice seem to have become a continuing practice in the .Patent Office, but it is here indulged in apparently without regard to the limitations inherent in the statutory exception in 35 U.S.C. § 7 . I say “apparently” because there is no record support here showing a compliance with the terms of the statutory exception in section 7. Even if we adopt the interpretation of this section which was relied upon by the majority in Wiechert the present record is silent either as to the need for the creation of such a board or as to the qualifications of its members who appear on this record simply as “acting examiners-in-chief.”
Perhaps the time has come for a reappraisal of what now seems to have become an established practice in appointing such boards. The legislative history of 35 U.S.C. § 7 , referred to at length in my dissent in Wiechert, shows that the enactment of paragraph 2 of that section was brought about by the need for permitting flexibility in administrative action to meet what was then an emergency situation due to the large number of appeals then pending within the Patent Office. It is clear that the enactment of this provision was to meet a particular situation rather than to establish a new practice, 1 the continuation of which in practical effect can be but to arrogate to the Commissioner the authority of the President to appoint and of the Senate to advise and consent as to the appointment of those who are to be examiners-in-chief. The practical effect of the present practice also is to abrogate the statutory limit of 35 U.S.C. § 3 as to the number of examiners-in-chief who may be so appointed.
I doubt that Congress intended that 35 U.S.C. § 7 should be productive of such practical results.
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