The opinion
RICH, Judge
(concurring).
I concur in the result reached by the majority but I abstain from the discussion of the “criticality” and “materiality” of the limitation in the count that “substantially all of” the particles of aluminous metal “are coarser than 60 mesh.”
Under the law as propounded by this court ever since its creation — law inherited from its predecessor in jurisdiction, the Court of Appeals for the District of Columbia — all that matters is that the limitation is clearly expressed in the count, that it is there. If it is there, it will not be disregarded and the copier must establish that he has supporting disclosure in the application on which he relies.
I neither agree nor disagree with appellant’s contentions about criticality— whatever “criticality” may mean — because that is an irrelevant consideration, where, as here, “coarser than 60 mesh” is the gist of the invention as defined in the count. Being irrelevant to the issue here, this is not the place to discuss what the meaning of that term is.
“Coarser than 60 mesh” is an express limitation in the copied claim which became the count and there can be no doubt about its meaning. It cannot be disregarded and appellant does not disclose it. That is sufficient for decision. The following cases fully support this view. In re Bijur, 40 F.2d 999 , 17 CCPA 1134; In re O’Dowd, 47 F.2d 392 , 18 CCPA 1002; Field v. Stow, 49 F.2d 1072 , 18 CCPA 1502; Sweetland v. Cole, 53 F.2d 709 , 19 CCPA 751; Mudd v. Schoen, 54 F.2d 959 , 19 CCPA 840; Bragg v. Besler, 56 F.2d 881 , 19 CCPA 1084; In re Fischer, 58 F.2d 1058 , 19 CCPA 1231; In re Creveling, 61 F.2d 862 , 20 CCPA 701; In re Replogle, 70 F.2d 375 , 21 CCPA 1068; Kean v. Wheelan, 102 F.2d 824 , 26 CCPA 1010; In re Draeger, 150 F.2d 572 , 32 CCPA 1217; Crome v. Morrogh, 239 F.2d 390 , 44 CCPA 704.
In some of the above cases it is said that “express limitations” must be regarded as “material” but it is not seen how this legal characterization adds anything to the rule that express limitations will not be ignored in determining whether the count finds support in an applicant’s disclosure.
With reference to “materiality,” note is taken of the provision of Rule 205, Rules of Practice in Patent Cases, which provides that in copying patent claims for interference “an immaterial limitation or variation” may be excluded. This was not attempted by appellant herein and he cannot now be heard to insist that the involved limitation is not material, however else it may be characterized.
Hall v. Taylor, 332 F.2d 844 , 51 CCPA 1420 (1964), cannot help appellant. It *1399 is not a comparable case. Taylor copied the count from Hall’s patent and the question was whether it found support in his 1953 parent application, on the date of which he was obliged to rely. The board found it did and we affirmed. We held, in accord with the established rule, that “all limitations of a claim must be considered” and, doing so, we found Taylor’s application supported them. The appellant, Hall, was urging lack of support in Taylor’s application on the basis of “ ‘criticality’ in the combination of three parameters specifically recited in the counts.” Neither we nor the board were able to find any such criticality and we agreed that the counts, taking all of their limitations into consideration, found support in Taylor’s application. Here, from a full consideration of appellant’s disclosure, we are unable to find support for the “coarser than 60 mesh” express limitation.