(dissenting).
BASIC ERRORS IN MAJORITY OPINION
The majority and concurring opinions rest on a false premise, namely:
The sole basis of rejection is under 35 U.S.C. § 103, the rejected claims being held obvious in view of the subject matter of the counts of the interference.
From this, an erroneous statement of the “sole issue” is then postulated, to wit:
whether claims may be rejected under 35 U.S.C. § 103 on the ground that a losing party to an interference is not entitled to claims which are asserted to be obvious variations of the invention defined in the counts, when section 102(g) and interference estoppel are not applicable. [Emphasis supplied.]
The involved claims do not come before this court on a basis that they are asserted to be obvious. They have been held by the Board of Appeals to be not patentably distinct from the invention defined in the counts lost in the interference, and appellants’ failure below even to argue the point should remove it from this court’s review. In any event, the majority opinion assumes the correctness of the board’s holding. As the board said:
It is our position that it would [sic] prima facie obvious to one of ordinary skill in this art to use the acid, the ester or the metal salt, interchangeably. Also, we consider that the use of adjacent homologs as the main chain or as the ester forming alcohol constitute [sic] obvious variations and are not patentably distinguishable from the counts. We note that not only have appellants not come forth with any showing of unobvious results, but have not even argued the question of obviousness.
The examiner consistently took the position, as stated in his answer, that:
Claims 6-7, 10-18 and 21 — 25 are rejected under 35 U.S.C. § 103 as unpat-entable over the counts of Interference No. 97,329.
However, the board clearly and deliberately avoided committing itself to that ground of rejection. This is what it said:
Claims 6, 7, 10-18 and 21-25 stand rejected “under 35 U.S.C. § 103” as unpatentable over the counts of Interference' No. 97,329 in which a decision on priority adverse to appellants was rendered. As we interpret the reasoning of the examiner, it is simply that the subject matter sought to be patented is barred to appellant [sic] by reason of the award of priority as to the counts of the interference under 35 U.S.C. § 135. [Emphasis supplied.]
After specifically indicating that its rejection was not under 35 U.S.C. § 102(g), the board made the following statement which, contrary to Judge Rich’s concurring opinion, can hardly be said to represent a “total absence” of a section 135 basis for rejection:
Rather, the rejection is on the basis that appellant [sic] has lost the interference and, in view of the adverse decision on priority, is not entitled to claims which correspond to or are obvious variations of the invention as defined in the counts of the interference.
It is to be noted that the solicitor, in his brief (p. 3), quotes this statement. If the board had been relying solely on a 35 U.S.C. § 103 rejection, it would have cited the claims of the Maltha et al. patent rather than the counts, which had been lost in an interference under 35 U.S.C. § 135. Contrary to the impression that might be received from Judge Rich’s concurring opinion, this court does not review the solicitor’s interpretation of the board’s opinion, but reviews the deci*1336sion of the board. Hunt v. Treppschuh, 523 F.2d 1386, 1388 (Cust. & Pat.App. 1975).
Perhaps, as the majority opinion says, “the examiner’s position was not specifically reversed by the board,” but it should be clear from the foregoing that there was no sole basis of rejection under 35 U.S.C. § 103. Accordingly, while the majority opinion correctly, albeit laboriously, disposes of a 35 U.S.C. § 103 rejection, it fails to respond to the rejection specifically and plainly stated by the board, quoted above. An identical fact situation has been before the court in at least four previous cases. In re Hilmer, 424 F.2d 1108, 57 CCPA 985 (1970) (“Hilmer II”); In re Risse, 378 F.2d 948, 54 CCPA 1495 (1967); In re Walker, 213 F.2d 332, 41 CCPA 913 (1954); In re Normann, 150 F.2d 708, 32 CCPA 1248 (1945). Thus, there can be no question that the board means it when it states that the loser of an interference is not entitled to claims that are obvious variations of the invention defined in the counts. The court has a duty to respond to this statement directly.
THE CONTROLLING ISSUE
The controlling issue in this appeal is whether appellants, having lost an interference on the basis of the foreign filing date of a patentee, are barred from obtaining claims that are “obvious variations” (not patentably distinct) of the invention defined in the counts of the interference.
LEGISLATIVE HISTORY AND CONGRESSIONAL INTENT
The interference was declared and decided pursuant to 35 U.S.C. § 135, subsection (a) of which provides:
Whenever an application is made for a patent which, in the opinion of the Commissioner, would interfere with any pending application, or with any unexpired patent, he shall give notice thereof to the applicants, or applicant and patentee, as the case may be. The question of priority of invention shall be determined by a board of patent interferences (consisting of three examiners of interferences) whose decision, if adverse to the claim of an applicant, shall constitute the final refusal by the Patent and Trademark Office of the claims involved, and the Commissioner may issue a patent to the applicant who is adjudged the pri- or inventor. . . . [Emphasis supplied.]
The original precursor of section 135 was section 8 of the Act of July 4, 1836 (5 Stat. 120-21), which provided: *1337Necessarily, the determination under section 8 of whether either of the applicants was entitled to receive a patent would have had to be consistent with the requirements for patentability prescribed by section 6.
*1336That whenever an application shall be made for a patent which, in the opinion of the Commissioner, would interfere with any other patent for which an application may be pending, or with any unexpired patent which shall have been granted, it shall be the duty of the Commissioner to give notice thereof to such applicants, or patentees, as the case may be; and if either shall be dissatisfied with the decision of the Commissioner on the question of priority of right or invention, on a hearing thereof, he may appeal from such decision, on the like terms and conditions as are provided in the preceding section of this act; and the like proceedings shall be had, to determine which or whether either of the applicants is entitled to receive a patent as prayed for. [Emphasis supplied.]
Section 6 of the 1836 Act provided: That any person or persons, having discovered or invented any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement on any art, machine, manufacture, or composition of matter, not known or used by others before his or their discovery or invention thereof, and not, at the time of his application for a patent, in public use or on sale, with his consent or allowance, as the inventor or discoverer; and shall desire to obtain an exclusive property therein, may make application in writing to the Commissioner of Patents, expressing such desire, and the Commissioner, on due proceedings had, may grant a patent therefor.
*1337The report of the Senate Select Committee on the State and Condition of the Patent Office (S.Rep. No. 338, 24th Cong., 1st Sess. 2-6 (1836)), which accompanied the bill that became the 1836 Act, said:
The Act of 1793, which is still in force, gives ... no power to the Secretary [of State] to refuse a patent for want of either novelty or usefulness. The only inquiry is whether the terms and forms prescribed are complied with. . . The necessary consequence is, that patents have been daily granted without regard to the question of novelty, or even utility in the ordinary sense
Under the act referred to, the Department of State has been going on for more than forty years, issuing patents on every application, without any examination into the merit or novelty of the invention. And the evils which necessarily result from the law as it now exists, must continue to increase and multiply daily till Congress shall put a stop to them. Some of them are as follows:
4. It opens the door to frauds, which have already become extensive and serious. It is represented to the committee that it is not uncommon for persons to copy patented machines in the model-room; and, having made some slight immaterial alterations, they apply in the next room for patents.
In this collision and interference of patents, the original and meritorious inventor sees his invention, to the perfection of which he has devoted much time and expense, pirated from him, and he must forego the reward which the law was intended to secure to him in the exclusive right it grants; or he must become involved in numerous and expensive lawsuits in distant and various sections of the country, to protect and confirm his rights. [Emphasis supplied.]
Declaring that “the first and most desirable object of a revision and alteration of the existing laws on this subject” was to prevent the evils which had resulted from “the unrestrained and promiscuous grants of patent privileges,” 1 the report continued:
A power in the Commissioner of the Patent Office to reject applications for want of novelty in the invention, it is believed, will have a most beneficial and salutary effect in relieving meritorious inventors, and the community generally, from the serious evils growing out of the granting of patents for every thing indiscriminately, creating interfering claims, encouraging fraudulent speculators in patent rights, deluging the country with worthless monopolies, and laying the foundation for endless litigation.
. The present law waits till infringements and frauds are consummated- — nay, it even aids them; and then it offers an inadequate remedy for the injury, by giving an action for damages. It ought, rather, by refusing to grant interfering patents, to render prosecutions unnecessary. [Emphasis supplied.]
From the foregoing, it is clear that the intent of Congress in enacting section 8 of the 1836 Act was not only to prevent *1338the granting of interfering patents but also to prevent an applicant involved in an interference from obtaining a patent unless his invention satisfied the requirements for patentability. See Jones v. Wetherill, 13 Fed.Cas. 1069 (No. 7,508) (C.C.D.C.1855); Potter v. Dixon, 19 Fed. Cas. 1145 (No. 11,325) (C.C.S.D.N.Y.1863).
There is nothing in the amendatory language or legislative history of subsequent statutes, including the Act of July 8, 1870, ch. 230, 16 Stat. 198, 204, and the Act of July 19, 1952, ch. 950, Pub.L. No. 593, 66 Stat. 792, 801-02, to show any change in this Congressional intent. Although the “whether” provision in section 8 of the 1836 Act was dropped (without legislative comment) from the successor section (§ 42) of the 1870 Act, Rule 59 of the Patent Office, promulgated July 15, 1870, in accordance with the 1870 Act provided:
If an interference has been properly declared, it will not be dissolved without judgment of priority unless the invention is found not to be patentable or .
This clearly implied that an interference would be dissolved if the counts were not patentable to an applicant. Similarly, 35 U.S.C. § 135 does not contain language referring to the determination in an interference proceeding of whether any of the applicants involved in the proceeding is entitled to a patent. However, unpatentability of the counts to an applicant involved in an interference with another applicant is a basis for a motion to dissolve the interference. 37 CFR 1.231, 1.237, 1.258, and 1.259. See also Noxon v. Halpert, 128 USPQ 481 (Comm’r Pats.1953) and M.P.E.P. 1105.-05. Thus, although the question of pat-entability is not ancillary to the question of priority in the interference proceeding itself, the Congressional intent, to prevent an applicant involved in an interference from obtaining a patent unless his invention satisfies the requirements for patentability, has been continued.2
This Congressional intent was underscored with the change made to old 35 U.S.C. § 52 (now 35 U.S.C. § 135) by the 1952 Act to provide that a decision on priority adverse to the claim of an applicant “shall constitute the final refusal by the Patent and Trademark Office of the claims involved . . . .” Clearly this provision means that an applicant who loses an interference shall not obtain a patent for the counts lost in the interference.
The Congressional committee reports accompanying the bill which became the Patent Act of 1952 show no correlation between section 102(g) and the later section 135 other than to retain “the present rules of law governing the determination of priority of invention.” S.Rep. No. 1979, 82d Cong., 2d Sess. 17-18 (1952); H.R.Rep. No. 1923, 82d Cong., 2d Sess. 17-18 (1952), U.S.Code Cong. & Admim.News 1952, pp. 2394, 2410. The Commentary on the New Patent Act, 35 U.S.C.A. at 19, explains that these are the rules “developed by decisions.” One of those decisions was In re Normann, supra, discussed later in this opinion.
“OBVIOUS VARIATIONS”
The phraseology used by Congress to define the requirements for patentability has remained fundamentally unchanged over the years. The Act of 1790 specified “useful” and “not before known or used.” The words “new and useful” first appeared in the Act of 1793 3 and *1339have been continued down to present 35 U.S.C. § 101.4 Until the 1952 Act, there was no reference to “a person having ordinary skill in the art to which said subject matter pertains,” such as appears in 35 U.S.C. § 103; nor do we find the phrase “obvious variations,” as such, in the contemporary literature. Nevertheless, the requirement that there be more ingenuity and skill than that possessed by a person having ordinary skill in the art (“unobviousness”) was latent in the 1836 Act, if not in the early Patent Acts, and its successors.
In struggling with the concepts of “new” and “useful,” the courts and patent authorities considered the “principle”5 or “substance” of the invention and were not persuaded by mere differences in form. Thus, in Whitney v. Emmett, 29 Fed.Cas. 1074, 1078 (No. 17,-585) (C.C.E.D.Pa.1831), Justice Baldwin declared:
The novelty of an invention is either the manufacture produced, or the manner of producing an old one; if the patent is for the former, it must be for something substantially new, different from what was before known; if the latter, the mode of operation must be different, not a mere change of the form and proportions; if both are the same in principle, structure, mode of operation, and produce the same result, they are not new, though there may be a variance in some small matter for the purpose of evasion, or as a colour for a patent.” [Emphasis supplied.]
In a similar vein, Curtis, Law of Patents 6-7 (1849) states:
So, too, mere colorable variations, or slight and unimportant changes, will not support a patent . . . . In such cases, if the consequences resulting from the change are unimportant, and the change consists merely in the employment of an obvious substitute, the discovery and application of which could not have involved the exercise of the inventive faculty, in any considerable degree, then the change is treated as merely a colorable variation, or a double use, and not as a substantive invention. [Emphasis supplied.]
Webster, Law and Practice of Letters Patent for Inventions 49 (London 1841) puts it as follows:
He is not the true and first inventor who has a material part of the invention suggested to him by another
A similar approach was taken in defining the concept of “identity” of invention. Absolute identity was not required. Curtis, supra at 262, says:
An infringement involves substantial identity, whether that identity is described by the terms, “same principle,” same modus operandi, or any other. It is a copy of the thing described in the specification of the patentee, either without variation, or with only such variations as are consistent with its being in substance the same thing. [Emphasis supplied.]
Substantial identity was determined to be the test in an interference in Tyson v. *1340Rankin, 24 Fed.Cas. 490, 493 (No. 14,320) (C.C.D.C.1853).
It fell to the Supreme Court to break with the preoccupation over “principle” and “substance” of the invention. In Hotchkiss v. Greenwood, 11 How. 248, 52 U.S. 248, 13 L.Ed. 683 (1850), the Court, deciding a case under the 1836 Act, declared:
For unless more ingenuity and skill were required than were possessed by an ordinary mechanic acquainted with the business, there was an absence of the degree of skill and ingenuity which constitute essential elements of every invention. In other words, the improvement is the work of the skilful mechanic, not that of the inventor.
Thus, a patentable invention requires more ingenuity and skill than that possessed by a routineer — a person having ordinary skill in the art to which the subject matter pertains — namely “unob-viousness.”6
In view of the foregoing, the following conclusion is inescapable: If we are to give meaningful recognition to the intent of Congress, carried down through the years from the Act of 1836, that an applicant involved in an interference proceeding shall not obtain a patent unless his invention satisfies the requirements for patentability, then section 135, quite apart from section 103 and section 102(g), must at least be read to bar, by implication, an applicant who has lost an interference on the basis of the foreign filing date of a patentee from obtaining claims for not only the invention defined by the interference counts but also for any invention representing variations requiring no more ingenuity and skill than that possessed by a person having ordinary skill in the art to which the interference counts pertain (i. e. what the board termed “obvious variations”). As well stated by the board:
If we were to follow appellants’ reasoning to its logical conclusion, we would condone a situation in which, by presenting claims, drawn sequentially, to compounds containing carbon chains from 1 to 20 carbon atoms, or to obvious variations of the compounds, the losing party in an interference with a patent (which relied on a foreign priority date) could be granted a patent which would cover all aspects of the invention defined in the counts of the interference as to which he has been adjudicated not to be the first inventor. Obviously, this would make a mockery of the interference practice.
To this it might be added that intent for such an absurd result is not to be attributed to the Congress. Haggar Co. v. Helvering, 308 U.S. 389, 394, 60 S.Ct. 337, 84 L.Ed. 340 (1940).
OTHER ERRORS IN MAJORITY OPINION
Instead of following basic rules of statutory construction that would lead to a correct decision, the majority opinion reaches an absurd result and then says that Congress should change the law.7 *1341It ignores the legislative history of section 135 and the clearly substantive intent of Congress that an applicant involved in an interference proceeding shall not obtain a patent unless his invention satisfies the requirements for patentability. Instead, it simply says:
A reading of section 135(a) confirms that all its provisions relate to procedure rather than substance.
The majority opinion cites the Commentary on the New Patent Act, 35 U.S.C.A. at 37-38, for the statement that sections 131-135 deal with “procedure.” But it ignores the fact that the Commentary does not say that these sections deal only with procedure and, in commenting on the provision in section 135 for cancellation of claims involved in an interference, states:
This is new in substance and is made possible by the amplification of the right of review of the patentee provided for in section 146. [Emphasis supplied.]
Other provisions, such as new matter (section 132), the time bar (section 135(b)), and unenforceability (section 135(c)), are clearly substantive.
Instead of reviewing the board’s specific ground of rejection (which is set forth in appellants’ reason of appeal No. 3), the majority opinion concentrates on rebutting the solicitor’s novel proposition that 35 U.S.C. § 135 is a prior art statute. But it would be a non-sequitur to conclude that this precludes reliance on section 135 for an implied bar to appellants’ claims arising from an adverse award of priority.8
The absurdity of the result reached by the majority opinion is pointed up by its discussion of this court’s opinion in In re Ogiue, 517 F.2d 1382 (Cust. & Pat.App. 1975). It proposes to draw an artificial distinction between a concession of priority (arising from a party’s refusal to copy claims which he could make) that prevents an interference and a concession of priority in an interference that results in an award of priority. In Ogi-ue, the applicant apparently refused to copy the claims because he would lose the interference based on his opponent’s foreign priority date. Under the decision reached by the majority here, however, Ogiue could have been assured of his claims (to what the court there said was essentially the same invention as that of the patentees) by simply copying the claims of the patentees and forcing them to prove right to priority based on their foreign priority date. In the appli*1342cant’s subsequent ex parte proceeding, the record of the interference would show that the patentees had made the invention outside the United States, while the applicant would be treated as the first to make the invention in the United States.9 The patentees, having won the interference, would be in a worse position than if there had been no interference. This is the situation the board here had in mind when it said:
Obviously, this would make a mockery of the interference practice.
NORMANN AND WALKER OVERRULED
Finally, the majority and the concurring opinions lead the court to overrule In re Normann, supra, and In re Walker, 213 F.2d 332, 41 CCPA 913 (1954). In each case, the appellant had lost an interference based on the foreign priority date of his opponent. The principal issue in Normann was “whether the use of fresh acid in the claimed process involves invention over the counts of the interference, which counts . . . call for the use of acid broadly.” This court held that the limitation of “freshness” did not involve “invention” over the lost counts and affirmed the rejection by the board. The opinion of the court did not refer to “prior art” and did not mention res judi-cata10 or estoppel. It clearly supports the Congressional intent that an applicant involved in an interference proceeding shall not obtain a patent unless his invention satisfies the requirements for patentability. Presumably the law of this case was carried over into the Act of July 19, 1952, one of the objectives of which was “the codification of the patent statutes and some prior case law.” Commentary on the New Patent Act, 35 U.S.C.A. at 10.11 The majority and concurring opinions are barren of any showing to the contrary. As pointed out earlier, there is nothing in the amendatory language or the legislative history of the 1952 Act to show any change in the above-referred-to Congressional intent.
Similarly, the opinion in Walker did not refer to “prior art” and did not mention res judicata or estoppel. Just like the board here, it relied not at all on 35 U.S.C. § 102(g), and it is significant that Chief Judge Markey’s concurring opinion does not say that this court in Walker “had to have done just that.” It merely noted the solicitor’s argument that the court had uniformly applied the rule that “a losing party in an interference is not entitled to claims that would dominate the claims given to his successful rival.” 12 Although the appealed claims here, if allowed, would not “dominate” *1343those awarded Maltha et al. in the interference, like those in Walker they do not “define subject matter which [is] patent-ably distinct.”13 In Walker, this court expressly stated that the rejection was not based on the interference winner’s foreign priority date,14 but “upon the adverse award of priority of invention against appellant.” Thus, Walker is squarely in point and clearly supports the Congressional intent that an applicant involved in an interference proceeding shall not obtain a patent unless his invention satisfies the requirements for patentability. The court in Walker and Normann did not give the interference winner a Pyrrhic victory by saying, “Let Congress change the law.” Why should it do so today?
CONCLUSION
Lurking behind the majority’s decision is the specter of In re Hilmer, 424 F.2d 1108, 57 CCPA 985 (1970) (“Hilmer II”). The issue upon which the decision in Hilmer II was narrowly focused, however, is not before us, either for reaffirming or overruling, because the board expressly disavowed reliance on 35 U.S.C. § 102(g) coupled with 35 U.S.C. § 119. The issue that is before us is whether appellants, having lost an interference on the basis of the foreign filing date of Maltha et al., are barred from obtaining claims that are obvious variations of the invention defined in the counts lost in the interference.
In view of the foregoing, the court should hold that they are.
. Under the Patent Act of 1790 (1 Stat. 109), the Secretary of State examined applications for patentability. However, examination was eliminated by the Patent Act of 1793 (1 Stat. 318) and not restored until the 1836 Act. It was the examination system, which has been expanded and refined over the ensuing one hundred and forty years, which insured that the patent grant would not be “unrestrained and promiscuous.”
. It is to be noted that Rule 232 of the Patent Office Rules of Practice, March 1, 1949, and January 1, 1953, also provided for unpatenta-bility of the counts to an applicant involved in an interference with another applicant as a basis for a motion to dissolve the interference. Such long-continued administrative interpretation is a presumptively correct interpretation of the statute involved. Costanzo v. Tillinghast, 287 U.S. 341, 345, 53 S.Ct. 152, 77 L.Ed. 350 (1932); National Lead Co. v. United States, 252 U.S. 140, 145-46, 40 S.Ct. 237, 64 L.Ed. 496 (1920).
. Section 1 of the 1793 Act provided:
That when any person or persons, being a citizen or citizens of the United States, shall allege that he or they have invented any new and useful art, machine, manufacture or composition of matter, or any new and use*1339ful improvement on any art, machine, manufacture or composition of matter, not known or used before the application, and shall present a petition to the Secretary of State praying that a patent may be granted therefore, it shall and may be lawful for the said Secretary of State, to cause letters patents to be made out in the name of the United States thereupon granting to such petitioner, or petitioners for a term not exceeding fourteen years, the full and exclusive right and liberty of making, constructing, using, and vending to others to be used, the said invention or discovery .
. 35 U.S.C. § 101 provides:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
. In Barrett v. Hall, 2 Fed.Cas. 914, 923 (No. 1047) (C.C.D.Mass.1818), Justice Story said: “The true legal meaning of the principle of a machine, with reference to the patent act, is the peculiar structure or constituent parts of such machine.”
. In 1 Robinson, Law of Patents (1890) 305-06, the author emphasized the need for substantial variation for novelty to exist as follows:
Every invention which is not already accessible to the public is regarded in law as new to the public . . . . Novelty, therefore, exists unless the invention is already in the possession of the public as an operative art or instrument, and this occurs only when the invention is a matter of existing public knowledge, or is derivable from what is known without further exercise of inventive skill. In other words, as every variation of form, as distinguished from variation in substance, is considered as effected by the imitative faculties, novelty consists in the substantial variation of the invention in question from all inventions which in contemplation of law are already open to the public.
. So does Chief Judge Markey’s concurring opinion. The rule that this court developed in dealing with obviousness-type double patenting in cases involving obvious variations of an invention claimed in an earlier patent would never have come about if the “leave it to Congress” attitude had prevailed. That rule represents recognition of what this court characterized as “one of the fundamental principles underlying the patent system, namely, that when the right to exclude granted by a patent expires at the end of the patent term, the public shall be free to use the invention as ‘well as *1341obvious modifications thereof or obvious improvements thereon.” In re Robeson, 331 F.2d 610, 614, 51 CCPA 1271, 1275 (1964). The court added that “to grant a second patent for an obvious variation deprives the public of those rights.” Such deprivation of the public would be no less if the loser in an interference were later granted a patent for obvious variations of the invention of the counts.
. Appellants contend that an award of priority does not per se preclude the losing party from allowance of claims to subject matter not adjudicated in the interference, citing In re Frilette, 436 F.2d 496, 58 CCPA 799 (1971) and In re Taub, 348 F.2d 556, 52 CCPA 1675 (1965). Although appellants’ “per se” contention is correct, as those cases demonstrate, the cases do not help appellants. In Frilette, the court disagreed with the solicitor’s position that the claims involved there must be patentably distinct from the interference counts, because the interference decision did not show who was the first inventor of the “subject matter” and appellants had been prevented from making such a showing in the interference. Appellants’ motion to broaden the interference counts to permit them to establish their earliest date of priority had been denied. The court held that appellants could not be denied the opportunity to show by affidavit that their act of inventing the subject matter of claims identical to the broadened counts proposed by the motion was prior to that of the patentee. That is not the situation here, where appellants neither moved to broaden the interference counts nor attempted to antedate Maltha et al.’s date of invention. In Taub, there had been an award of priority on a broad count based on evidence of priority with respect to only one species. The court pointed out that domination by the count did not preclude a showing of patentable distinction with respect to another species by a party whose invention of that species was prior to the invention of the interference winner. Clearly that case is inapposite. The decisions in both cases are entirely consistent with the Congressional intent under 35 U.S.C. § 135 referred to earlier in this opinion.
. If, in fact, the party with the earlier foreign priority date had made the invention in the United States before the losing party’s effective United States date, the record would not necessarily show it, because, in the interference, all the winning party would have had to show was his foreign priority date. For all the record here shows, Maltha et al. might have made the invention of the counts in the United States before appellants’ date of June 6, 1963, since they needed to show only their right to their Netherlands filing date to be awarded priority. See In re Ogiue, supra at 1391 n. 3.
. The U. S. Court of Appeals for the District of Columbia applied res judicata against the losing party in an interference in United States Rubber Co. v. Coe, 79 U.S.App.D.C. 305, 146 F.2d 315 (1945).
. See Judge Baldwin’s concurring opinion in In re Bass, 474 F.2d 1276, 1302 and 1303; 59 CCPA 1342, 1375 and 1377 also the main opinion at 474 F.2d 1289, 59 CCPA 1359.
.The court cited In re Sola, 77 F.2d 627, 22 CCPA 1313 (1935), where appellant had conceded priority of invention in an interference and the court held that the claims on appeal contained limitations which, when considered with the other elements of the claims, did not define anything inventive over the invention on which priority had been conceded; and In re Derleth, 118 F.2d 566, 28 CCPA 973 (1941), where the court held appellant was estopped from making claims which it found were not patentably distinct from the counts of the interference and appellant had not objected to the holding of the Primary Examiner that the claims would be held subject to the outcome of the interference. But see In re Long, 83 F.2d 458, 23 CCPA 1078 (1936), where dominating claims were allowed to the losing party of an interference since the record disclosed that all parties to the interference other than appellant clearly conceded that they could not be regarded as the first inventor of the subject matter of the dominating claims.
. Although subservient claims may, if they represent a patentably distinct invention, be patentable, they cannot be so regarded if they are merely obvious variations of the dominant claim. In re Taub, supra note 8.
. Thereby the court avoided the “push back” argument which had been rejected in In re Hilmer, 359 F.2d 859, 53 CCPA 1288 (1966) (“Hilmer (I)”), just as the board did here.