(dissenting in part).
The court in the prevailing opinion has set forth and taken judicial notice of the new rule of the Patent Office by which claim 15 would be allowed if now presented there. The majority, however, have affirmed the decision of the Board of Appeals with respect to the rejection of that claim.
The ground stated for the affirmance is that the court is without jurisdiction to consider the change in the law effected by the new rule of practice in the Patent Office authorizing the allowance of the claim. The majority bases its position on the ground that the change in law had occurred after the appeal was taken and no reasons of appeal are directed to that point and the point in issue, citing In re Langsner, 139 F.2d 512, 31 C.C.P.A., Patents, 785.
The question of law thus presented was raised and rejected when the Court of Customs and Patent Appeals promulgated the rule that we will here apply the appropriate law to the facts in a given case on appeal, even though in so doing it is necessary for the court to pass upon questions not considered by the tribunals of the Patent Office and not raised by the reasons of appeal. The Coschocton Glove Company v. Buckeye Glove Company, 90 F.2d 660, 664, 24 C.C.P.A., Patents, 1338, 1343. (Italics supplied.)
The rule in Langsner, supra, is not pertinent here because in that case the situation was based upon a subsequent change in essential facts and not a subsequent change in law effected by a change in the rules of practice in the Patent Office. When, as here, the new rule is not inconsistent with the statutes, it has force and operation of law. In re Terres et al., 150 F.2d 711, 32 C.C.P.A., Patents, 965.
By a short cut to justice, the court should relieve appellants of the necessity of resorting to all the technical apparatus of procedure, with which litigants are familiar, in order to correct a situation which the court has learned from its own records that the foundation of the decision of the Board of Appeals has been reversed. Reed v. Allen, 286 U.S. 191, 207, 52 S.Ct. 532, 76 L.Ed. 1054.