DISSENTING OPINION
LenROOt,' Judge:I am compelled to dissent from the conclusion of the majority reversing the decision of the Board of Appeals as to counts 12 and 13, and awarding priority as to said counts to the Maytag Co., assignee.
Count 12, which is quoted in full in the majority opinion, includes as an element, in the description of the radial wings therein referred to, the following: “ and having rounded outer edges merging into the concave surface of said disk.” It is clear to me that Snyder, neither in his specification nor drawings, discloses this element. His drawings show the outer edges of his radial wings to be vertical and horizontal except for a rounded corner uniting the horizontal and vertical edges. Upon this point the board said :
« * * iaw examiner points out that the edges merge into the disk at 55 in Figure 4 of Snyder and are rounded at their upper ends. He held that the “ count does not specify that the rounded part of the outer edges merge into the concave surface of the disk.”
We are unable to concur in this holding of the law examiner. In our opinion the count calls for a construction in which the rounded outer edge merges into the concave surface of the disk. It is not fairly shown in appellant’s construction where a straight outer edge merges into the concave surface of the disk and is surmounted by a rounded corner. We accordingly find that Snyder can not make count 12.
*1479I am clearly of the opinion that the board was correct in its construction of this element and that its decision awarding priority as to count 12 to Unruh should be affirmed.
With regard to count 13, which is also quoted in the majority opinion, in describing the radial wings therein referred to, the element is stated of “ the top surface of said wings above said trough curving downwardly and inwardly.” With regard to this count the board said, speaking of Snyder’s disclosure:
⅜ ⅜ * while it is trae that the straight horizontal upper edge or surface of the wing is shown as joined to the straight inclined surface at 56 by a curve rather than an angle, this curve constitutes too small a part of the top surface of the wing to fairly support the count. ⅞ ⅜ ⅜
With respect to this element, while it is fully supported by the disclosure of Unruh’s application, from which both counts 12 and 13 were copied, Snyder’s disclosure shows a straight horizontal line of the top surface of the wing and a downwardly extending straight line, a short, slight curve, almost imperceptible in the drawings, connecting said lines together. The said horizontal and inclined straight lines appear, from the drawings, to form more than '90 per cent of the top surface of the wing, and the slight curve that is shown merely serves to blend said lines, thereby avoiding an angle where said straight lines meet. I am unable to see how, under any proper rule of interpretation, Snyder can be said to disclose “ the top surface of said wings above said trough curving downwardly and inwardly.” (Italics mine.) I therefore think that the board should be affirmed in its award of priority as to this count to Unruh.
With regard to both of said counts, we can not assume that the differences between the disclosures of Unruh and Snyder are merely differences in design having no functional significance. When we consider the nature and purpose of the device here in issue, the differences in function between the blades disclosed by Unruh and those disclosed by Snyder are, to my mind, clearly apparent, and, this being true, the counts should be more strictly construed than if it were merely a matter of choice of design having no functional significance.
The decision of the majority upon priority as to these particular counts is of no importance except to the parties here involved, but I greatly fear that the holding of the majority, considered in the light of the facts here involved, will be very embarrassing in the future and will open the door, in interference cases, to awards of priority to those not entitled to them.