The opinion
SMITH, Judge
(concurring).
For my views concerning the legality of a board consisting of two Acting Examiners-in-Chief, such as appears in this record, see In re Wiechert, 370 F.2d 927 , 54 CCPA 957 (1967). Since my last consideration of this problem, the Court of Appeals for the District of Columbia has considered the same problem in Lindberg v. Brenner, 399 F.2d 990 (D.C. Cir. 1968). Both the majority opinion of this court in the Wiechert case and the opinion of the court in the Lind-berg case have treated the powers of the Commissioner under 35 U.S.C. § 7 as being limited powers in that a board having Acting Examiners-in-Chief cannot include more than one such examiner of primary grade. The record here discloses the presence of two Acting Examiners-in-Chief on the board but nothing is of record to show that their designation falls within the limitations imposed on the Commissioner by 35 U.S.C. § 7 .
I therefore note my grave reservations concerning the legality of the present board, but deem it in the best interest of the court to participate in its decision on the merits. In so doing, I concur in the majority opinion.