(concurring).
Had not circumstances prevented my participation in Palmquist, I doubtless would have joined my colleagues in adopting appellants’ then plausible interpretation of Section 103. There can be no doubt that the language therein, when interpreted literally and standing alone, supports Palmquist. But, as the majority makes so clear here, we misinterpreted Congressional intent there. No court is infallible, and the margin for error becomes greater in the complexities of patent law, increasing with the heavy case load1 the court is attempting to carry. It is comforting to note that on those happily rare occasions when mistakes are made the court has not hesitated to set the record straight and prevent bad law from becoming precedent for more bad law.
That Palmquist was new law2 is evident from In re Wenzel, 88 F.2d 501, 24 CCPA 1050; In re Ruscetta, 255 F.2d 687, 45 CCPA 968; Ex parte Austin, 72 USPQ 384. That the result there was also foreign to Congressional intent and policy is equally clear. For example, the statute is designed to encourage early' filings so the public may the sooner benefit, yet Palmquist discouraged that goal. Indeed, it placed a premium on late filing, and created a virtual open season on the public by permitting “obvious” subject matter already in the public domain for more than one year to be patented.3 I *993am confident neither the court nor Congress intended such a result. Nor could either have intended to shroud the validity of issued patents in perennial doubt, or encourage the danger of legal harassment for which Palmquist might well have become a potent source. It is well that we close the door here on those possibilities.
. In 1958 patent appeals to this court totaled 83; six years later the number had reached 245, a 200% increase.
. In this connection, it is not without interest to note that -Foster did not argue at any time before the board that his Rule 131 affidavit removed the Binder publication as a reference. The board’s decision on reconsideration is dated Sept. 17, 1962. This court rendered its decision in Palmquist on June 28, 1963.
. In further consideration of the record before us here, it seems to me that the subject matter of claims 25, 26 and 28, as broadly stated, is unpatentable under 35 U.S.C. § 102(b) alone, because the subject matter was described in toto in the Binder printed publication more than one year prior to appellant’s filing date. In concentrating upon the rejection of those claims over the “conclusion” portion of Binder, -the Patent Office appears to have overlooked several polymers of butadiene and copolymers of butadiene-styrene disclosed -by Binder which have “at least 85%” of the butadiene units joined in head-to-tail or 1,4 addition polymer structure as called for in the claims. Those polymers, appearing in Tables 1 and 2 of Binder, are identified, for example, as Polymer Nos. 995, 1075, 1060 and 1113. 'However, the jurisdiction of this court being limited under 35 U.S.C. §§ 141-144, we cannot enter a new ground of -rejection. In re Thomson, 336 F.2d 604, 52 CCPA 770. I comment no further on the patentability of those claims without the benefit of the views of the Patent Office and appellant.