(dissenting).
I am unable to agree with the conclusion reached by the majority, that since appellant’s invention appears to be a structurally simple device, it is no more than an obvious combination of old elements. We should judge such a combination by the purpose which dictated its creation. Traitel Marble Co. v. U. T. Hungerford Brass & Copper Co., 18 F.2d 66 (C.C.A.2d), cert. denied, 274 U.S. 753, 47 S.Ct. 765, 71 L.Ed. 1333.
Appellant’s purpose in making the new combination embodying his invention was to meet the need for a coaxial choke coupler with less radiation leakage than couplers previously known while maintaining a low VSWR1 in the coupler. Appellant succeeded in doing this by creating a new combination of individually old elements. What we are here concerned with is not these elements per se but rather with the new combination of those elements which, as shown by appellant’s affidavit and the exhibit thereto, produces results of a magnitude which was unexpected from the prior art teachings.2
The majority, in finding appellant’s invention structurally obvious over the prior art, seems to me to have ignored the unexpected results achieved by appellant’s new combination of elements. It is only after appellant’s concept becomes known that his solution to the problems he encountered may appear to have been obvious. Only when viewed after appellant’s concept had been embodied in the claimed structural combination, is it possible to see it as an obvious combination of the old elements shown in the references.
In Loom Company v. Higgins, 105 U.S. 580, 591, 26 L.Ed. 1177, the Supreme Court in commenting on a comparable situation said:
“ * * * At this point we are constrained to say that we cannot yield our assent to the argument, that the combination of the different parts or elements for attaining the object in view was so obvious as to merit no title to invention. Now that it has succeeded, it may seem very plain to any one that he could have done it as well. This is often the case with inventions of the greatest merit. It may be laid down as a general rule, though perhaps not an invariable one, that if a new combination and arrangement of known elements produce a new and beneficial result, never attained before, it is evidence of invention. It was certainly a new and useful result to make a loom produce fifty yards a day when it never before had produced more than forty; and we think that the combination of elements by which this was effected, even if those elements were separately known before, was invention sufficient to form the basis of a patent.”
35 U.S.C. § 103 recognizes the doctrine of the Loom Company case, and to forestall the use of hindsight in testing the obviousness of the invention requires that patentability must be decided as of the time the invention was made. When thus considered, appellant’s combination would not, it seems to me, have been ob*938vious to one of ordinary skill in the art. I have been unable to find any teaching in the cited prior art from which I am willing to conclude that appellant’s invention was obvious to one of ordinary skill in the art, or which would suggest to such a person that he should take the course taken by appellant in producing his novel combination.
The examiner and the board would avoid the effect of appellant’s affidavit and exhibit which show the surprisingly superior results achieved by appellant’s coaxial coupler, for the reason that they do not show comparative radiation loss tests with the Garfitt device. Garfitt, it seems to me, discloses nothing but a coupling for hollow tubes used as wave guides. It is not a coaxial coupler of the type disclosed by appellant.
The Espley and Salisbury references, like the claimed invention, require insulating sections in series with both inner and outer conductors in order to function as a coaxial transmission line. The Garfitt reference, while it discloses a conducting septum, uses this septum to short circuit the inner conductor to the outer conductor, and thus functions as a rectangular waveguide.
While the low impedance of a disc line quarter wavelength choke joint between two conductors was recognized in the art, its coaction with an inner conductor sleeve joint to provide a coaxial choke coupler with low VSWR over a wide band width cannot be shown by comparative test with Garfitt unless Garfitt is first modified, in the manner taught by appellant, so that it can function as such a coaxial choke coupler. I agree, therefore, with appellant’s view set forth in the dissenting opinion of Judge RICH that this requirement “is nothing more than a requirement to compare the results of the invention with the results of the invention.”
I also am unwilling to approve, as of the time appellant’s invention was made, the suggestion made by the board that the couplers shown in Salisbury and Espley could be modified by the Garfitt device. This modification, it seems to me, was first suggested in this art by appellant.
I agree with Judge Rich that the majority’s conclusion is inconsistent with the long established law in this court and elsewhere regarding the patentability of new combinations of old elements which produce results as unexpected as those which are reported in the record here. I am unable to reconcile the holding of the majority here with the principles I find in a long line of cases including Loom Company v. Higgins, supra, Washburn & Moen Mfg. Co. v. Beat’Em All Barbed Wire (The Barbed Wire Patent), 143 U.S. 275, 283, 12 S.Ct. 450, 36 L.Ed. 161; Expanded Metal Co. v. Bradford, 214 U.S. 366, 381, 29 S.Ct. 652, 53 L.Ed. 1034; In re McKenna et al., 203 F.2d 717, 40 CCPA 937, and In re Holt, 162 F.2d 472, 34 CCPA 1129.
. I would, therefore, reverse the decision of the board.
. I am here using this term in the sense and with the meaning ascribed to it in the majority opinion, i. e., “Voltage standing-wave ratio.”
. I refer here to the teachings that sleeve and radial disc joints have equal effect in minimizing radiation leakage,