(concurring).
I fully agree with the result reached but with qualifications as to what might be drawn therefrom.
This case seems to me quite similar in principle to In re Walter, 292 F.2d 547, 48 CCPA 1094. We there found support for a claim copied for interference purposes on the theory of in-herency even though, as the dissenting opinion there pointed out (the same being true here), “appellant’s application contains no express disclosure of the limitation in the appealed claim,” “the property claimed * * * was not recognized or disclosed,” and “appellant did not appreciate the advantage” of the structure as recited in the copied claim, at least so far as his disclosure was concerned. In Walter, although “the public would not have been taught the desirability” of what the patentee taught, had he “not entered the field,” as the dissent in Walter pointed out, we nevertheless believed the applicant was entitled to contest priority of claims reading on his apparatus, on the basis of inherent disclosure.
For precedents in addition to In re Spencer which establish the supposedly “solid law” on inherency followed in Walter, see the cases cited in the dissenting opinion therein. To what may be gleaned therefrom I wish to add that, in my view, a holding of a right to copy for the purpose of contesting priority does not preclude further consideration of the right to make upon further evidence, if any, not before us, which might be produced in inter partes proceedings. Neither is it a ruling, one way or the other, that the applicant has so complied with 35 U.S.C. § 112, first paragraph, as to be entitled to a patent containing the copied claims. For my part, I am passing only on the right to have an interference — and that preliminarily. That was my view in Walter, contrary to the apparent dissenting view that what was at issue was whether the applicant could be “granted a claim.”