Application of Chi K. Dien

SMITH, Judge

(concurring).

The examiner, in applying section 103, cast his inquiry in terms of “obvious to try.” The board while not using this terminology has employed the rationale of the examiner’s statement in analyzing the issue presented under section 103. The solicitor abjures it here.

There is, of course, nothing in the statute which permits application of such a test. In re Tomlinson, 363 F.2d 928, 53 CCPA 1421 (1966); In re Henderson, 348 F.2d 550, 52 CCPA 1656 (1965); In re Huellmantel, 324 F.2d 998, 51 CCPA 845 (1963); see In re Fay, 347 F.2d 597, 52 CCPA 1483 (1965). It not only involves an analysis for which there is no authorization but it precludes a consideration of the invention as a whole for which there is an explicit statutory directive.

Considering the subject matter as a whole in view of the prior art of record, I agree with the majority that the claimed invention is unobvious.