(concurring).
I join the well-written opinion of the majority. Exercising that which should be rarely exercised, the judicial privilege of additional comment, I append these few remarks.
The board’s basis for affirming the rejection was not clearly stated. The board’s opinion uses language from 35 U.S.C. § 103 and fails to indicate reversal of the examiner’s reliance thereon. Though the board said it was not employing 35 U.S.C. § 102(g) coupled with 35 U.S.C. § 119, it had to have done just that, as indicated below, before it could label the appealed claims “obvious variants.”
It seems clear that the limiting phrase “in this country” of 35 U.S.C. § 102(g) served the basic interests of the United States and the purpose of our patent system i. e., to encourage disclosure here. In earlier, more isolated times, the existence of prior inventions elsewhere in the world, which were not patented or described in a printed publication, was of little or no moment within our borders. Treaty provisions designed to achieve reciprocity, as reflected in 35 U.S.C. § 119, were not intended to create a new source of “prior art.” Whether accelerated communication has so “shrunk” the world as to require that Maltha’s invention, on which a patent application had been merely filed in a foreign land, must from its foreign filing date constitute an obstacle to patent-resulting disclosures by our citizens is, I fully agree, a matter for the Congress. The statute, as it now stands, is to the contrary.
Whether 35 U.S.C. § 135(a) be procedural or substantive, it provides that an adverse interference decision is a final refusal only of “the claims involved.” We are not at liberty, it seems to me, to add “or obvious variants thereof” to that phrase in the statute when, as here, the adverse decision rests only on an earlier foreign filing. Hence the very wording *1333of the statute impels the court’s rejection of the solicitor’s argument built on 35 U.S.C. § 135(a).
The desire of courts to avoid untoward results has often led to a desirable growth in the life of the law. That desire can also lead to such confusion in the law as to render society almost rudderless in the area involved. Though the law of patents seems occasionally a particular victim, the phenomenon occurs in all types of cases. Whether it arises as an element of social jurisprudence or in an effort to effectuate a perceived public policy, the dichotomy between the so-called activists, who would reach for the “proper” result, and the so-called literal-ists, who would rigidly “follow” the law as written, has probably existed since courts began. An almost infinite shading exists between instances at opposite ends of the spectrum. In seeking a “just” result, the written law may in some cases be only slightly tilted, while in others it may be bent and twisted into unrecognizable and grotesque forms. On the other hand, literal application of statutory law may produce results extending from those only slightly spaced from equity to those so remote from our traditional concepts of justice as to cry out for change in the written law. Similarly, we who are charged with the duty of deciding and of explaining our decisions may, from case to case, often and rightly find ourselves at various wavelengths in the activism-literalism spectrum. Happily, the constant activist, for whom the result controls, and the total literalist, for whom the result is irrelevant, are rare if not extinct.
Though now encrusted with varying and variable judicial interpretations, the patent law is statutory. Our representative form of government requires that the enactments of its Congress must always be, at the very least, the starting point. There being no common law of patents, we should take care to fill the Holmesian interstices of the statute with judge-made law only under the gravest and most impelling circumstances.
Though the attraction of the result reached is strong, I am unable to join the opinion of my brother in dissent. In this regard, I am in accord with the remarks of my brother in concurrence. It is an undeniable truism that Congress, along with this court and every other respecter of our patent system, intends that patents be issued only upon those claimed inventions which meet established standards of novelty, utility and unobviousness. But a determination of whether claims meet the unobviousness standard requires that there be something over which the claims may or may not be held obvious. The troubling question may be stated as “Compared to what?” My primary difficulty with the board’s decision, and with the otherwise consistent reasoning of the dissent, lies in their underlying premise, i. e., that the lost interference counts herein exist as comparison material useable in considering patentability of the claims on appeal. If they do not, it cannot be said that appellants’ claims are obvious variants of anything. In my view, the subject matter of the lost counts was not available for comparison. It was not available under 35 U.S.C. § 102 because it was not an invention made in this country. It was not available under 35 U.S.C. § 135(a) because that section does not provide for comparison or any other testing of obviousness. That the broad congressional intent may have been to limit patent claims to those unobvious over prior inventions made in this country finds support in the enactment of 35 U.S.C. § 102(g). I can find no support in the present statute, or in its legislative history, for the view that Congress intended the obviousness standard to be applied in the light of an invention set forth in the counts of an interference lost only because of an earlier foreign filing date.
If, upon return of the case, the examiner finds no other basis of rejection, adherence to the language of the statute in the present case may produce a clearly undesirable result, i. e., the existence of a second patent containing claims *1334which vary only obviously from claims in an earlier patent. That result does, however, have at least one potential compensation. Adherence to the statute may encourage limited statutory amendment, applicable to the precise facts here confronted.
Until such time as it shall be provided in law that one who loses an interference because of an earlier foreign filing date of another shall thereafter be precluded from obtaining a patent on an invention which would have been obvious if the subject matter of the counts of that interference had existed in this country at the time the invention was made, we must reach the result herein when presented with the precise facts now before us.