concurring.
I completely agree both with the approach taken by the majority on the § 120 question and the resulting decision. I would, however, consider another question not reached by the majority.
I have carefully considered appellant’s brief, reply brief, and the extensive prosecution history of this application in the PTO and yet I find no cogent statement of the theory upon which appellant seeks relief. The theme recurring throughout the brief is that appellant wishes to “rely on the filing dates of his ’886 and ’792 patents to overcome Bauer and Takahashi to the extent those patents contain the same disclosures as the references.” How he wishes to “rely” on those dates is not certain.
Ordinarily, failure of an appellant to present a clear question for the court to decide with attendant legal theories to support the desired answer to that question would be fatal to the appeal. However, since the arguments and facts herein could support different pathways of legal reasoning, and, more importantly, possibly different results, it would seem to be worthwhile to explore one apparent alternative rationale.
There are at least two ways that this ease may be treated. First, the court may find that appellant is asking it to make the decision that various bits of his claimed invention are supported in the parent applications (now patents ’886 and ’792 — both filed before Bauer and Takahashi) and thereby provide a § 120 immunity to the claimed invention. The majority opinion properly rejects this approach. Alternatively, appellant may be asking the court to treat his prior patents as some type of pro forma Rule 131 affidavit. The argument is made here (as it was before the board) that the principles discussed in In re Rainer, 390 F.2d 771, 55 CCPA 853, 156 USPQ 334 (1968)1 should apply in a similar manner in this case since, appellant argues, “the essential issue * * * is the question of priority [of invention] and nothing else.” Obviously, appellant has not submitted a Rule 131 affidavit to overcome Bauer and Tak-ahashi.2 But through the years this court has taken a “rule-of-reason” approach in permitting an appellant to antedate a reference whenever proffered extrinsic evidence fairly indicates that the appellant is the first inventor. In one such situation, in which an appellant’s evidence did not conform to the then-existing norm of presentation, the court cut through the formalities and faced the issue squarely:
The real issue is whether all the evidence, including the references, truly shows knowledge by another prior to the time appellants made their invention or whether it shows the contrary. It is a question of fact. [Emphasis in original.]
In re Land, 368 F.2d 866, 878, 54 CCPA 806, 823, 151 USPQ 621, 632 (1966).3 It is possible that this record contains enough evidence to support appellant’s argument. However, since the pertinent evidence has not been directly addressed and argued, the sufficiency thereof is not approached in the majority opinion.
The pertinent statutory inquiry4 is under 35 U.S.C. § 102(e),5 i. e., can the appellant *64demonstrate that he was in possession of his invention prior to the filing dates of the Bauer and Takahashi patents? Or, can he show prior invention of at least as much of the invention as is shown in those two patents?6 Appellant points to the specifications of his ’886 and ’792 patents and answers that he can. Although the contents of those specifications are to be considered, they are not necessarily indicative of the subject matter appellant can claim as his invention. For instance, discussions of pri- or art are often found in disclosures and portions of the subject matter might be derived from another inventor.
There are two parts of those specifications that are to be considered as evidence of the inventions — the claims as filed and the claims as issued. The Rules of Practice in Patent Cases require that an applicant, upon filing an application, swear or affirm, in essence, that he believes himself to be the inventor of the subject matter for which he solicits a patent.7 That subject matter is found in the claims. So, by operation of the rules, originally filed claims are to be considered as the invention contemplated by the inventor as of the date of filing. Further, as we found in In re Faci-us, 408 F.2d 1396, 1406, 56 CCPA 1348, 1358, 161 USPQ 294, 301 (1969) “a patent evidences inventorship by the patentee of everything both disclosed and claimed.” (Emphasis in original.) The evidentiary value of an allowed claim would presumably date back to the time of the entry of that claim, in its allowed form, in the specification.
The claim-as-evidence is in a form that is necessarily conclusory in nature. The inventor presents the conclusion that “this is the invention.” Arguably this is a different type of showing than that often presented in Rule 131 affidavits where facts tending to show the invention are presented rather than merely a conclusion of invention. Nonetheless, if the “conclusion” of the inventor as shown in the claims was made prior to the time he had any interest in the outcome of the question in issue,8 the claims should be accorded some weight as evidence. Whether that weight is sufficient to become dispositive is a fact question.
Appellant’s patent ’886 has a filing date of December 12, 1969, and an issue date of January 1, 1972; ’792 has corresponding dates of June 15, 1970, and July 17, 1973. The filing date of Bauer is March 15, 1971, and that of Takahashi is July 3, 1972. At first blush, the originally filed claims of ’886 are useful as evidence against the disclosure of Bauer and similarly the originally filed claims of ’792 are applicable against Tak-ahashi.9 The allowed claims in neither of appellant’s patents are ostensibly of interest because of the respectively later issue dates.
The appellant has made comparisons between the decoder matrix of Bauer and that of ’886 as well as the matrix of Tak-ahashi and that of ’792. These comparisons were presented to the examiner (who responded in his Answer to the board and found them to be non-persuasive), to the board (which considered the comparisons not to be germane to the § 120 basis on which it decided the case), and to this court. However, the comparisons were based on the specifications of ’886 and ’792 rather than on the pertinent sets of claims.
As to ’886, the originally filed claims appear to be close enough in content to the argued portion of the specification to allow the arguments to be considered. However, *65in ’792, the argued matrix constants are not clearly found in the original claims. Derivation of the matrix is clearly beyond the scope of review in this court.
In sum, even though appellant’s appeal, as viewed by the majority opinion, is one that must be rejected under law; under the rationale suggested here, the appeal may be deficient only in the presentation of the evidence. In any event, the decision of the board is properly affirmed.
. Rainer is oft cited to show “that an anticipatory disclosure, not a statutory bar, may be removed as a reference against a generic claim by a Rule 131 affidavit showing prior reduction to practice of as much of the claimed invention as the reference shows.” Id. 390 F.2d at 773, 55 CCPA at 855, 156 USPQ at 336.
. A Rule 131 affidavit was submitted to successfully overcome a patent to Cooper (U.S. 3,856,992).
. In re Land dismissed the then-prevalent notion that a Rule 131 affidavit was required to antedate a prior art reference.
. Initial recognition is made that neither Bauer nor Takahashi is a bar under 35 U.S.C. § 102(b) since both issued after the filing date of appellant’s application. No apparent problems are seen with regard to 35 U.S.C. § 102(g).
. 35 U.S.C. § 102(e) reads:
(e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent, or
. This scope of proof has been countenanced in in re Stempel, 241 F.2d 755, 44 CCPA 820, 113 USPQ 77 (1957), and its progeny.
. Pursuant to 37 C.F.R. 1.65.
. For instance, here the appellant could have no interest in the outcome of this question prior to the time this case was filed.
. Appellant apparently considers the content of ’792 to correspond only to Takahashi and ’886 only to Bauer.