with whom MARTIN, Judge, joins (concurring in part and dissenting in part).
While I agree with the majority that the Link patent is not a full “anticipatory” reference under 35 U.S.C. § 102, I cannot agree that a rejection of the claims on the grounds set out by the board is not before us.1 Admittedly, if no rejection based on section 103 were made by the board, it cannot be considered by this court. In re Turlay, 304 F.2d 893, 49 CCPA 1288. Thus it becomes pertinent to look at the board’s opinion to see if such a rejection were made.
As the majority opinion notes, the examiner regarded the Link disclosure to be a “valid anticipation” of the claims, setting the stage for a 35 U.S.C. § 102 rejection. The board affirmed that rejection. In addition, the board, “assuming Link to be restricted to reassembly producing a final core having components in ring form,” regarded the claims to be “unpatentable over” 2 Link as a “variation,” giving reasons for its opinion. Appellant notes in his brief:
“ * * * the language is not clear and the Court may deem it a 35 USC 103 rejection in spite of the failure to label the action as one under Rule 196(b) with the resultant deprivation of procedural rights under that Rule.”
In my opinion, the language of the board’s decision is clear and does provide *189adequate notice to appellant that section 103 is involved.
Contrary to appellant’s views and the apparent view of the majority, fairness compels me to point out that appellant has been denied no procedural rights which he has not denied to himself through inaction or failure to follow through on the rights given him by Rules 196 and 197 of the Patent Office. Rule 196 states in pertinent part:
“(b) Should the Board of Appeals have knowledge of any grounds not involved in the appeal for rejecting any appealed claim, it may include in its decision a statement to that effect with its reasons for so holding, which statement shall constitute a rejection of the claims. The appellant may submit an appropriate amendment of the claims so rejected or a showing of facts, or both, and have the matter reconsidered by the primary examiner * * *. The applicant may waive such reconsideration before the primary examiner and have the case reconsidered by the Board of Appeals -upon the same record before them. * * * The applicant may waive reconsideration by the Board of Appeals and treat the decision, including the added grounds for rejection given by the Board of Appeals, as a final decision in the case.”
Rule 197(b) states in pertinent part:
“(b) Any request or petition for rehearing or reconsideration, or modification of the decision, must be filed within thirty days from the date of the original decision * *
If appellant felt the board stated a new ground of rejection, he had recourse then to seek rehearing, reconsideration, or modification of the decision. On the other hand, if he saw no new ground of rejection, nevertheless he could have sought rehearing, reconsideration or modification. In either event, the majority is clearly in error when it states “Thus, if we were to consider, on this appeal, issues which arise under section 103, we would be doing so without affording appellant an opportunity to be heard in the administrative tribunals of the Patent Office.” Appellant has had that opportunity, in my opinion, but has elected to “waive reconsideration” and “treat the decision, including the added grounds for rejection * * *, as a final decision in the case.” We need not be more concerned here than appellant was below about any loss of procedural right.
Our jurisdiction is not limited to consideration of the examiner’s statement as the majority opinion would imply. It seems to me the board properly found the subject matter of claims 1-8, 14 and 15 to be rendered obvious by Link.3 I would affirm the decision.
. 35 U.S.C. § 141 states:
“An applicant dissatisfied with the decision of the Board of Appeals may appeal * * *.” [Emphasis added].
. That language usually is taken to denote a section 103 rejection. See In re Rice and Wilson, 341 F.2d 309, 52 CCPA-; In re Foster, 343 F.2d 980, 52 CCPA ■ — In re Dwyer et al., 317 F.2d 203, 50 CCPA 1230. Compare In re Gregg, 244 F.2d 316, 44 CCPA 904. To be sure, the language “unpatentable over [the reference] under 35 USC 103” would be far more helpful in informing appellants and this court alike of the exact statutory basis for the rejection.
. I agree with appellant that claims 9-13 and 16 are neither anticipated nor rendered obvious by Link.