(dissenting).
The case upon which the majority relies in effecting the final rejection of the affidavits submitted by appellants on the petition for reconsideration was rendered obsolete when old rule of practice, 138, was revoked and supplanted by Rule 195 of the new rules of practice in the Patent Office.1
Even so, a rule of procedure for the conduct of the business of the Patent Office shall not be permitted to interfere with the jurisdiction of this court in granting a patent to an inventor who otherwise would have been deprived of such right by the enforcement of the rule in question.2
A proper practice relative to the consideration of affidavits was established by this court in the case of In re Hutchison.3 There this court held that an affidavit filed with the Board of Appeals with a petition for reconsideration should be considered not only by the board but also by this court as cumulative argument of the same nature as that of the request for reconsideration. On that basis this court accepted the arguments advanced in such an affidavit as a ground of reversal of the board on the question of patentability.
Congress has endowed the 'Court of Customs and Patent Appeals with jurisdiction to hear and determine appeals, “revise the decision appealed from in a summary may, on the evidence produced before the commissioner,” and return to the commissioner a certificate of the court’s “proceedings and decision, which shall be entered of record in the Patent Office, and shall govern the further proceedings in the case.” (Italics supplied.) R.S. § 4914, 35 U.S.C.A. § 62.
The same statute provides that “the revision shall be confined to the points set forth in the reasons of appeal.” A patent, like a trade-mark, is, by its very nature, *176affected with a public interest, however, and in rendering a decision with respect to either, this court, like the Commissioner of Patents, must be guided by the primary consideration of the public interest, irrespective of the reasons of appeal.4
Certainly there is no rule of law which here forbids the consideration of affidavits such as these with respect to matters of fact which nowise involve matters of a highly technical nature. Nor is there any reason why such facts may not be passed upon by this court and the applicant thereby relieved of the necessity of resorting to all the technical apparatus of procedure, with which litigants are familiar, in order to correct a situation which erroneously developed in the Patent Office.
The function of this court in the interpretation of the patent laws is to construe the language thereof so as to give effect to the intent of Congress. R.S. § 4914 expressly requires this court in the exercise of its jurisdiction to govern, that is, to direct and control, the administration of the patent laws in matters on appeal. Surely there can be no such control, when, as here, the court takes the bull by the tail and not by the horns.
The adequacy of the disclosure of the specification in the case at bar has been acknowledged by the allowance of claim 37. The statement in other claims that the coating is electrically coated, when read in the light of the specification, does not necessarily mean that such claims are invalid.5
For the reasons hereinbefore stated, the decision of the Board of Appeals should be reversed.
. In re Ripper, Deceased, Etc., 171 F.2d 297, 36 C.C.P.A.,Patents, 743.
. In re Stauber, 45 F.2d 661, 18 C.C.P.A., Patents, 774.
. In re Hutchison, 104 F.2d 829, 26 C.C.P.A.,Patents, 1370.
. Precision Co. v. Automotive Co., 324 U. S. 806, 65 S.Ct. 993, 89 L.Ed. 1381; Baldwin Co. v. Robertson, 265 U.S. 168, 44 S.Ct. 508, 68 L.Ed. 962; The Coschocton Glove Company v. Buckeye Glove Co., 90 F.2d 660, 24 C.C.P.A., Patents, 338; Burmel Handkerchief Corp. v. Cluett, Peabody & Co., Inc., 127 F.2d 318, 29 C.C.P.A.,Patents, 1024; Stanco, Inc., v. Waverly Petroleum Products Co., 168 F.2d 319, 35 C.C.P.A.,Patents, 1195; In re Drawbaugh, 9 App. D.C. 219; Tomlinson of High Point v. Coe, 74 App.D.C. 364, 123 F.2d 65; Stahly, Inc., v. M. H. Jacobs Co., 7 Cir., 183 F.2d 914.
. Shull Perforating Co. v. Cavins, 9 Cir., 94 F.2d 357, 364; Peckat Mfg. Co. v. Jacobs, 7 Cir., 178 F.2d 794, 797, certiorari denied, 339 U.S. 915, 70 S.Ct. 575.