(dissenting).
I cannot agree with the result reached in this case, for the reasons set forth in my dissenting opinion in In re Foster, 343 F.2d 980, 52 CCPA-.
Moreover, just as I cautioned in Foster, we are here confronted with a prime example of denial of procedural due *969process to an applicant. The majority opinion fails to inform as to the precise ground of rejection in the present case, but proceeds as though the rejection were grounded on section 102(b). My study of the record has convinced me that no such rejection was ever made.
The examiner’s answer states that all the claims were rejected “as being un-patentable over the Baddiley et al reference.” This typically amorphous “un-patentable over” rejection tells us nothing, of course, with regard to any statutory reason for rejecting the claims. However, later in his answer the examiner says, “The applicant urges that a rejection under 35 U.S.C. 103 is not valid since he alleges that the subject matter of the claims was not obvious at the time the invention was made * This statement makes it clear to me, as I am certain it did to the applicant, that the examiner was thinking in terms of section 103.
In sustaining the examiner’s rejection, the Board of Appeals stated:
* * * ginee the rejection over the Baddiley et al. article is based on 35 U.S.C. 103, appellant reasons that 35 U.S.C. 102(b) is not applicable. * * * ******
* * * Appellant has improperly interpreted 35 U.S.C. 103, however, since this section is based upon the prior art specified in Section 102. Thus, even if an invention is not identically disclosed by a reference available under Section 102(b), a patent may still be refused over the same reference, under Section 103. * * *
As can be seen from the above statements, the actual rejection made by the examiner and affirmed by the board was based upon section 103.
But instead of deciding the issue of “obviousness” at the time the invention was made, under section 103, the instant majority manufactures and decides an issue of loss of right to patent under section 102(b). How this can be done is an extremely puzzling question to contemplate, particularly in view of the statement in the Foster majority opinion that “Whether there has been a loss'of right to a patent * * * is a distinct and separate issue, with which section 103 per se has nothing whatever to do.” (Latter emphasis added.)
Small wonder then that, as the majority opinion so candidly puts it “appellant has not controverted the examiner’s statement that the claimed invention would be obvious to one of ordinary skill in this art upon viewing Baddiley.” Appellant properly assumed, in view of the express language of section 103, that the obviousness of his claimed invention would be tested as of “the time the invention was made.” And since Baddiley was not even in existence at that time, it could hardly be said that his invention was obvious thereover at that time. Even assuming that appellant accepted as correct the contention which has now been given the force of law by this court in Foster, he certainly was under no obligation to raise arguments and produce evidence directed to issues under section 102(b), since, I repeat, there was no rejection on that basis. Insofar as appellant was concerned, his Rule 132 affidavit had removed Baddiley as a reference for purposes of section 103, and since section 102(b) was not involved in any rejection, he had satisfied the statutory conditions for patentability.
Now appellant learns that what seems to have been a section 103 rejection is here sufficient to raise the issue of loss of right to patent under section 102(b). If I may be permitted an ad hominem, this is truly learning the hard way. For this is one case in which it is painfully clear that the appealed rejection did not provide the applicant “with such information * * * as may be useful in judging of the propriety of continuing the prosecution of his application,” to which he is entitled under 35 U.S.C. § 132. In addition, the present majority seems to have little regard for the jurisdictional limits of this court, in that it now decides an issue that was never pre*970sented below. I find nothing in sections 141 through 146 of Title 35 which could, even by the most imaginative lawyer, be interpreted to permit this court to decide an appeal on the basis of section 102(b) when the only rejection was for obviousness under section 103.
To me it is unconscionable that an applicant can now receive a rejection from the Patent Office on one statutory ground, and then, on appeal from that rejection, receive a wholly new rejection from this court which is based on an entirely different statutory ground. I would reverse.