dissenting in part.
I agree with the majority’s disposition of claim 24, the rejection of which is affirmed.
I disagree with the affirmance of the rejection of claims 10, 18-15, and 18 because I cannot agree with the fact finding on which the sole rejection was based, as I read the file history. That fact finding was that Jolly disclosed a heating or pressure chamber “of fixed size,” which is a positive limitation of all of these claims. The majority does not think that the functioning of Jolly’s piston 72 precludes the existence-in his device of a heating chamber of fixed size, but I do.
The -board, with whose view the majority agrees, prevaricated on this question. It said that
* * * Jolly’s -warmer 26 Raving a container 28 presents a chamber 70 of fixed size which could he used without piston 72 and the related parts which provide control for the expanding lather.
That argument disregards or rebuilds the Jolly structure, which we-must contemplate as it is described. While it is true the chamber 70 is of fixed size it is not chamber 70 which contains lather or heats it or holds it under pressure. It is therefore not the heating or pressure chamber. The major portion of chamber 70 merely serves to house the spring and guide the piston rod; it could as well be open at the top because this portion contains no lather at any time and is under no pressure. The heating or pressure chamber of Jolly is chamber 68 which is the space in the lower portion of chamber 70 enclosed at the top by the piston. The essential feature of the structure is that the piston moves, varying the volume of this space or chamber. On this point the board said, “The claim does not exclude a maximum fixed size.” This is a self-contradictory statement. If it has a maximum it must have a minimum. A chamber which varies in size between the maximum and a minimum certainly is not of “fixed size,” if this term has any meaning at all. That which varies is not fixed.
The majority has merely agreed with the board; it has presented no better argument. I do not think it can. I think it errs.
As for the majority’s alternative rationale, I can find no support for it in what transpired below, and I would not, therefore, affirm a rejection which I believe was never made. As I wrote for Judge Lane and myself earlier this term, “We do not conceive that it is part of our duty to make better rejections for the Patent Office * * In re Arkley, 59 CCPA 804, 455 F. 2d 586, 589, 172 USPQ 524, 527 (1972). The fact that appellant, out of an abundance of caution, argued the point does not bring it before us if the rejection was not made below with the clarity contemplated by 35 USC 132. In re Benson, 58 CCPA 1134, 1137-1141, 441 F. 2d 682, 684-86, 169 USPQ 548, 549-552 (1971), cert. *1207.granted on other grounds sub. nom. Gottschalk v. Benson, 405 U.S. 915, 172 USPQ 577 (1972); and In re Ludtke, 58 CCPA 1159, 1164, 441 F. 2d 660, 662, 169 USPQ 563, 565 (1971) (Almond, J.).