concurring.
I am satisfied that the majority is correct in reaching the conclusion that the disclosures of the cited prior art references here, as applied by the Patent Office, did make out a prima facie case that the claimed subject matter before us would have been obvious in the sense of 35 USC 103. In order to prevail, therefore, it became appellant’s burden to come forward with some evidence tending to prove that the opposite conclusion, i.e., that the claimed invention would not have *1199been obvious, would be more correct. To bis credit, appellant recognized bis burden and came forward with such evidence. The ultimate task of the Patent Office, which is now ours to review, was to evaluate that rebuttal evidence vis-a-vis the factors making up the prima facie case and to determine which was the stronger.
As should be readily apparent, the nature and degree of proof which will be held sufficient to rebut an initial inference of obviousness will vary depending on a number of circumstances, not the least of which is the strength of that prima facie case. Appellant here chose to take the “unexpected results” route. He sought to establish his case by submission of facts tending to establish improved results coupled with his allegation that such results would have been unexpected to one having ordinary skill in the pertinent art.
To draw the line anywhere in evaluating facts set forward to establish patentability is always a complex and difficult task. It becomes more so when the record leaves some doubt concerning the truth or accuracy of some of those facts. Such is the case here. Appellant has submitted evidence indicating that his claimed device possesses the obviously commercially desirable property of operating at a relatively cooler temperature. As the majority indicates, if this result would not have been predictable, i.e., expected, it would be enough to rebut the prima facie obviousness to be inferred from the reference disclosures. Unfortunately, we are not presented with anything in the nature of substantive proof or convincing reasoning by either party regarding the objective truth of appellant’s assertion of this critical fact.
It appears to me that the principal opinion, in postulating its own theory about why the results shown by appellant would not have been expected, unnecessarily (and perhaps unlawfully, see 35 USC 144) goes “out on a limb.” I confess to not knowing if this theory is plausible or ridiculous, right or wrong. I simply cannot understand it. Even if I could, however, I feel it is not the province of this court to attempt such independent analyses. Compare the dissent in In re Moore, 56 CCPA 1060, 1066, 409 F. 2d 585, 161 USPQ 343 (1969).
In any event, I am of the opinion that such an undertaking is unnecessary in this case. Appellant himself has gone out on a limb and has asserted under oath that the results he has demonstrated would have been unexpected. Recognizing the more critical eye with which the courts are now looking at such material assertions by applicants, the penalties, both civil and criminal, to be incurred if appellant has in fact, committed fraud by such assertion, treating the showing of admittedly advantageous results as some corroboration (if it were so obvious that these devices could be made to run cooler, then why wasn’t it done earlier?), and noting that the Patent Office has done nothing more than cynically “pooh-pooh” appellant’s assertion, I would accept it as an additional factor and give it the controlling weight indi*1200cated earlier. Cf., In re Ehringer, 52 CCPA 1457, 347 F. 2d 612, 146 USPQ 31 (1965).