(concurring).
The opinion written by the Chief Judge reaches a result with which I am in full accord. Since the decision in the present case will materially affect future rejections predicated on res judicata, it seems desirable to amplify the statement of facts on which the present decision is predicated and to add some additional observations as to rationale which should govern its application in administrative proceedings.
The Facts Here do not Warrant the Application of Res Judicata
The pertinent facts of record may be briefly summarized. Appellant Herr filed application No. 583,923 on May 10, 1956, as a division of a parent application which had been filed' August 8, 1955. The rejection of claims in the divisional application was affirmed in our prior decisions, In re Herr, 304 F.2d 905, 907, 50 CCPA 705. The issue before us in this decision arose from the examiner’s rejection of all claims as being “unpatentable over” a patent to Herr and Heyl, No. 2,769,019, filed July 9, 1953 and issued on October 30, 1956. The examiner stated, “in view of the absence of a showing of unexpected results the action is made FINAL.” Thereafter appellant appealed the rejection and filed an *620affidavit of one Stafford allegedly-demonstrating unexpected results.
Following receipt of the affidavit, the examiner, by letter of August 1,1958, advised the case was “in condition for allowance.” The pending appeal was dismissed by order of the board but applicant was advised that “the case cannot be passed to issue due to a possible interference.” Interference No. 89,720 was declared which was later resolved in favor of appellant.
Following resumption of ex parte prosecution, the examiner, by letter of December 28, 1959, rejected the claims “as lacking invention over Herr.” The previous allowance over Herr was said to be “improper and inadvertent.” At this time the examiner took the position that the previous affidavit “cannot be accepted.” On March 16, 1960, the examiner made the rejection final, and stated that the specification does not “provide a clear unequivocal disclosure that the compounds originally claimed are anabolic agents.” Appellant appealed.
Appellant petitioned the board for an early hearing pointing out that the only objection to the appealed claims was based on Herr, the single reference cited in the first office action of January 24, 1957. Appellant pointed out that after once successfully removing any objection based on Herr and also succeeding in an interference, he now finds himself returned to the same position he once occupied over 3 years previously, namely, the rejection made in the first office action. .Appellant pointed out that during the interim certain of the appealed claims were relevant to two pending interferences. Appellant stated:
* * * The picture as a whole is one in which applicant’s rights will be irreparably damaged unless an early decision is rendered by the Board of Appeals in this application. Moreover, the general public will suffer irreparably if patents are issued to others or delayed to applicant because of the patent confusion which is bound to result if the patentability of the claims in this case is not determined promptly.
The arguments before the board may be summarized as follows. The examiner argued:
* * * In the absence of a showing of both new and unexpected results the instant claims are not seen to define patentably over the present state of the art. See In re Hass, 1944 C.D. 242. The affidavit submitted under Rule 132 filed May 1, 1958, (Paper No. 6) is not seen to overcome the rejection because it disclosed a utility for the compounds which is not alleged within the specification. * * *
Appellant argued:
The reason for the incorrect position of the Patent Office is not known.
* * *
The statement of usefulness as “novel androgens and anabolic agents” is clearly directed to the compounds claimed in this application. The fact that it also applies to the compounds claimed in the parent application is immaterial. The statement is certainly not exhausted merely because it applies to two different individual products, both disclosed in the same case as novel compounds.
The board affirmed the examiner’s rejection and its opinion is adequately discussed in our previous opinion, supra. In our opinion, three judges joining, the issue was stated to be one of obviousness under 103. In resolving this issue, we considered the Patent Office’s argument that the structure of the claimed compounds was obvious in view of the prior art. Appellant argued that the claimed compounds were not obvious in view of the prior art when their properties were considered. We did not consider appellant’s argument as we determined that the specification did not teach one of ordinary skill in the art that the claimed compounds possessed oral anabolic and androgenic activity. We concluded, in view of the fact that testosterone and 17-methyltestosterone were known “standards,” that the 17 methyl deriva*621tive of Herr would have been an “obvious structural change to a chemist of ordinary skill in that field.”
Our opinion appears to proceed on the basis that the chemical compounds in issue may be “prima facie” obvious from a consideration of their structure and the structure of prior art compounds. It has been said that where the claimed •compounds are “prima facie” obvious it is “incumbent” upon the applicant to submit evidence of an “unexpected” property or result, see, e. g., In re Heyna, 360 F.2d 222, 53 CCPA 1331. The inquiry under section 103 requires*, however, a consideration of the claimed invention as a whole. A property of or a result attained by a chemical compound which is not communicated by its chemical structure, may be persuasive of either non-obviousness or obviousness. Thus, properties and results are factual evidence concerning the invention which must be considered in resolving the issues arising under section 103. The invention is not simply the chemical structure. To support a section 103 rejection the public must be shown to be in constructive possession of the invention by evidence that the invention would be obvious to one of ordinary skill in the art. Thus the inventor who discovers a chemical compound, albeit closely related structurally to the prior art compounds, which possesses unexpected properties or attains unexpected results may have made a patentable invention.
Our previous decision held that the specification considered there did not teach one of ordinary skill in the art that the claimed compounds possessed the properties relied on by appellant. These facts which appellant sought to supply by affidavit, and the issue arising thereunder, were therefore not properly before us for consideration in our previous inquiry. In the present appeal a basis has been laid and the facts are properly before us as evidence to be considered in resolving the issue under section 103. In addition, the present record shows the Patent Office agrees that the claimed compounds are new and unobvious.
The board, however, affirmed the examiner’s rejection of the appealed claims “on the grounds of res judicata.” The claims presented here are identical to those before us in our previous opinion. The board was apparently of the view that presenting the same claims was per se conclusive of the applicability of res judicata. The board in its opinion reasoned in part as follows:
* * * it is impossible for appellant to argue any unobvious difference in the claims. The identical claims do not acquire a different meaning or scope merely because the new application contains additional disclosure of properties and utility.
* ***** *
* * * insofar as appellant now relies upon the newly disclosed androgenic and anabolic activity and utility, he must appropriately restrict himself, as by the presentation of claims in method of use form, if he wishes to argue that he has now made a new contribution which is not subject to res judicata. We repeat, appellant’s problem is created by his determination to obtain claims of the identical meaning and scope as the claims of his parent application, albeit the disclosures of the two applications are not identical.
In the sense that the claims are identical and therefore define the same compound, they do not “acquire a different meaning” or “scope.” However, I fail to appreciate the significance of the board’s reasoning in view of the inquiry required under section 103. Chemical compounds may be “claimed,” that is, defined, by a recitation of formula, structure, properties, or the process of making the compound. Had appellant chosen to “claim” his invention by reciting properties or utilizing a product-by-process claim, instead of relying on the same claim, it could not be maintained that these claims did not take on a “different meaning” as they would define subject matter which is admittedly unobvious in view of the prior art. Appellant would appear to avoid the reasoning *622of the board by merely utilizing a different form of claim. It does not seem to me that the form of claim used is either relevant or controlling. The subject matter sought to be patented, the invention, must be considered, not the form of claim utilized.
The board was also of the opinion that appellant should restrict himself to “claims in method of use form.” From this statement I assume the board intended that appellant claim a process of using the claimed products, section 100 (b). This type of reasoning was presented in In re Papesch, 315 F.2d 381, 50 CCPA 1084. Therein the examiner reasoned, “The obvious compound is not made less obvious by its properties in an art use. * * * It appears that if * * * [a patentable] invention is present, it resides in the use of the claimed compounds as anti-inflammatory agents and should be claimed as such.” 315 F.2d at 384, 50 CCPA at 1088. We disagree with this reasoning. We quoted the following, 315 F.2d at 389, 50 CCPA at 1095, from In re Larsen, 292 F.2d 531, 49 CCPA 711:
-» * * ^he allowance of the claims to the compounds was based on the fact that they possessed unique, and presumably unexpected, properties. Since there was nothing to indicate that the compounds, when made, would have these properties, it was not obvious to make the compounds. In such a case the allowance of claims to the compounds must depend on the proposition that it was unobvious to conceive the idea of producing them, within the meaning of Title 35 U.S.C. § 103.
[Emphasis added.]
As to “structural obviousness” the opinion in Papesch quotes the following, 315 F.2d at 390, 50 CCPA at 1096, from In re Lambooy, 300 F.2d 950, 49 CCPA 985:
A comparison of the structural formulas of these two compounds shows clearly that there is substantial structural similarity. But more appears from the facts of this case than structural similarity, facts which raise genuine question as to the real significance of such bare structural similarity, whatever label may be attached to it.
* * * There is no evidence in the record which would lead one skilled in this art to expect that the differences in molecular structure between riboflavin and appellant’s compound would cause this difference in properties.
In In re Petering, 301 F.2d 676, 683, 49 CCPA 993, 1002, we stated:
•x- * * Although it is also true that some of the specific compounds of Karrer [the reference] * * * are structurally rather similar to the compounds defined in claims 5, 11 and 12, * * * there is a significant difference in properties between appellants’ compounds and Karrer’s compounds. [Emphasis added.]
^ S 44 4Í* # 44
We do not agree with the board that the unexpected properties of the compounds defined in claims 5, 11 and 12 should not be considered in determining the patentability of these claims. The compounds are not described in Karrer within the meaning of 35 U.S.C. § 102(b). In determining whether the claimed compounds are obvious within the meaning of 35 U.S.C. § 103, we think their properties may and should be considered, and having considered the properties, we are convinced the compounds * * * are patentable over Karrer.
We concluded in Papesch, 315 F.2d at 390, 50 CCPA at 1097:
From the standpoint of patent law, a compound and all of its properties are inseparable; they are one and the same thing. The graphic formulae, and the chemical nomenclature, the systems of classification and study such as the concepts of homology, isomerism, etc., are mere symbols by which compounds can be identified, classified, and compared. But a formula is not a compound and while it *623may serve in a claim to identify what is being patented, as the metes and bounds of a deed identify a plot of land, the thing that is patented is not the formula but the compound identified by it. And the patentability of the thing does not depend on the similarity of its formula to that of another compound but of the similarity of the former compound to the latter. There is no basis in law for ignoring any property in making such a comparison. An assumed similarity based on a comparison of formulae must give way to evidence that the assumption is erroneous.
It seems to me that the board here, in effect, but reargues the reasoning advanced and rejected in Papesch, namely, that unexpected properties of a chemical •compound should be claimed in the form of a process, see 315 F.2d 381, 50 CCPA at 1088. Whether appellant seeks a patent to new and unobvious compounds or to a new and unobvious process of using these compounds is irrelevant to the determination of whether the present rejection on res judicata is proper. Properties inhere in the compound as in Papesch and must be considered.
The problem in applying res judicata to ex parte Patent Office proceedings has been considered by the Board of Appeals in several cases.
Thus, in Ex parte Gustavson, 14 USPQ 332 (1932) the board overruled a rejection based on res judicata stating:
We have considered our former decision and are of the opinion that these claims were not held unpatentable on their merits but on the ground that they were not supported by the original disclosure and further that certain affidavits which were relied on by the appellant did not establish comparative facts which would show wherein the construction by the rejected claims possessed certain advantages over the art cited as alleged in the arguments for their allowance. Appellant has now filed a new application Serial No. 502,-350, December 15, 1930, in which the construction claimed is adequately disclosed and has supported his contentions relative thereto by new affidavits, thus prima facie overcoming the grounds upon which the former decision was based. Under these conditions we are of the opinion that the rejection on the ground of res ad judicata should not be -insisted on.
In Ex parte Jameson, 23 USPQ 179 (1934), the board considered a problem very analogous to that here before us. In resolving it, the board stated:
After our decision in application No. 161,463, appellants filed the present application on appeal in which the specification was enlarged to describe the use of pectin and sugar and the value of such ingredients as incorporated with the fruit juice solids in the production of a powder was emphasized. We note that application No. 161,463 has become abandoned. We feel therefore that the question of res adjudicata as here raised is unwarranted inasmuch as the present application overcomes the lack of disclosure in the prior application and that our decision was rendered principally because of the lack of disclosure in the former application.
In Ex parte Schott, 136 USPQ 383 (1962), claims to a new abacus useful as a calculating device were previously rejected under section 103. This rejection was affirmed on appeal. Appellant filed a second application with claims to a new abacus useful as a teaching device for small children learning the decimal system. These claims were also rejected under section 103. After comparing the claims the board’s conclusion was “that the two claims define precisely the same structure,* although using somewhat dif*624ferent verbiage.” 136 USPQ at 385. The examiner was of the view that the obviousness of the claimed abacus was res judicata in view of the previous board decision. The board stated:
* * * the evidence in the instant appeal * * * presents the entirely new issue, namely of subject matter which, because of its novelty, permits effectuation of a new utility in teaching, this being a concept foreign to the reference devices.
Thus, although the claim covers precisely the same physical structure, a different issue of patentability is pre- ■ sented for consideration.
We were unable to find any decision by this Board or any court reviewing a decision of this Board on analogous facts, namely where the claim is identical as to structure but new evidence and new issues of patentability are presented for consideration. [Emphasis added.]
Res judicata was held inapplicable. The board clearly felt it was its duty and function to consider the obviousness of the invention, the subject matter sought to be patented since this had not been considered previously. Cf. Weeks v. Warp, 95 U.S.App.D.C. 235, 221 F.2d 108, (1955) (“same subject matter” and “same disclosure”). Identity of claim language was not controlling. As one writer has indicated:1
The comparison of claims, however, does not totally resolve the issues of the applicability of res judicata. Rather, the same question of patentability or issue must appear, and the claims must be considered in this context. If, in this area, there is the confusion that has been evidenced in case law terminology, it is submitted that clarity and uniformity would be promoted if the rejection specified the precise statutory grounds of rejection. Even if the same statutory ground of rejection is relied upon in the second application, for example, section 112 of the act, the issue as to different or even the same claims may not have been previously litigated. [Citations omitted.]
Additionally, the issue of obviousness of an invention under section 103 may require consideration of such matters as
commercial success, long felt but unsolved needs, failure of others, etc. * * * to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness or nonobviousness, these inquiries may have relevancy. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 694, 15 L.Ed.2d 545, (1966).
In Ex parte Osborn, 25 USPQ 260, a claim to an airplane construction was rejected, and affirmed by the board, as “devoid of invention [obvious].” However, the board refused to be bound by its prior decision, stating:
* * * We believe that on the record of the other application, that decision was justified, but since that time a historical event has occurred which we think furnishes evidence materially affecting the situation. * * *
The “historical event” was that the airplane so constructed won a $100,000.00 first prize in the Guggenheim competition. The board observed:
In the face of such overwhelming proof of lack of appreciation of the usefulness of floating ailerons with the slotted wing and trailing edge flaps, it seems rather presumptuous for this Office to insist any longer that the combination was obvious. Perhaps there never has been a better opportunity to demonstrate that those most highly skilled in an art had not thought of *625adding two improvements together to get a result that seemed to involve nothing more than the sum of the advantages. * * *
The factual requirements which the Supreme Court has recognized as being an essential part of the determinations under section 103 seem to me to require that proceedings at the administrative level must not be unduly foreclosed so as to deny applicants the opportunity to supply the factual materials required to determine these issues.
While the Schott decision was not followed by a majority of the board sitting en banc in Ex parte Budde, 150 USPQ 469 (1966), I find it significant that the majority decision does not discuss or overrule the Gustavson, the Jameson or the Osborn cases, supra, although all were referred to in the first of the concurring opinions. Neither does the majority opinion in Budde refer to the factual aspects of section 103 issues discussed by the Supreme Court in Graham, a little less than a month earlier than the Budde decision.
The present case, however, requires that we consider the res judicata issue which is here presented in the light of the Supreme Court’s latest pronouncement as to the nature of the determinations which must be made under section 103. When this is done, I think the Jameson, Osborn and Schott decisions provide a more rational basis for resolution of the res judicata issue in section 103 rejections than does the Budde decision. In passing, I express my agreement with the views of the concurring board members in Budde. I do not think the fact situation in Budde required overruling Schott.
It is clear the majority in Budde felt compelled to the result there reached by the decisions of this court in In re Prutton, 204 F.2d 291, 40 CCPA 975; and in In re Lundberg, 280 F.2d 865, 47 CCPA 1140. However, as Judge Rich has pointed out in his concurring opinion, Prutton is of questionable value as a precedent and I agree with him that it should be overruled. It seems to me also that the practical effect of the majority opinion here is to do so. Lundberg, as a precedent, is viable only within its particular fact framework as Judge Rich has demonstrated in his concurring opinion. Thus, neither Prutton nor Lundberg requires an affirmance of the res judicata rejection here.
Three other decisions of this court, while not controlling on the present fact situation, contain general observations concerning the problem of applying res judicata to Patent Office proceedings and should be briefly considered. These cases are: In re Fried, 312 F.2d 930, 50 CCPA 954 (1963); In re Szwarc, 319 F.2d 277, 50 CCPA 1571, (1963) and In re Hitchings, 342 F.2d 80, 52 CCPA 1141 (1965).2
In In re Fried, 312 F.2d 930, 50 CCPA 954, we reviewed the requirements of res judicata. The first application there ended in an unappealed examiner’s rejection, which, under present office practice is not considered as giving rise to res judicata. Be that as it may, the first application involved support for those claims, section 112, and the second application also involved support for different claims which were narrower in scope, section 112 via section 120, the purpose being to gain the benefits of an earlier filing date. While we affirmed the decision of the board, we did so on the basis of the merits of the case and not res judicata. We said different claims presented a different issue. Nothing was said about any converse. The plain fact is that every application usually presents a range as to subject matter that may be claimed and to that end many types of claims exist. Claims may be either too broad or too narrow to satisfy section 112 for a given specification. Each claim must be examined in light of the specification. The “scope” or “form” of claim is no conclusive guideline or solution to determining “issues” and whether res judicata is applicable, as this appeal dem*626onstrates. Insofar as the alternative provided by section 120 and office practice is concérned, discussed in Fried, thére was no intention there to decide cases in the future involving different fact situations. And the “alternative” here, discussed supra, appears to have been something less than a free choice.
In In re Szwarc, 319 F.2d 277, 50 CCPA 1571, we again were concerned with section 120. Therein we held, as to certain product claims, that collateral estoppel existed as to whether the specification satisfied section 112 in view of the fact that the form of claim employed included a specific product upon which a federal court had previously held the specification was deficient under section 112 as to that specific product. The “scope” or “form” of claim was immaterial. The issue whether the specification taught “how to use” that compound had been previously decided.
Whether the claimed invention here is “obvious,” in my view, has not been decided. In view of all of the facts of record, there is a lack of identity of issues, not simply different evidentiary facts.
Sections 120 and 112 were also involved in In re Hitchings, 342 F.2d 80, 52 CCPA 1141. Like Fried, an unappealed examiner’s rejection was relied on as being res judicata. We held res judicata inapplicable, 342 F.2d at 85, 52 CCPA at 1147, stating:
* * * For if unappealed final rejections are uniformly held to be res judicata, the applicant has no choice other than appeal or abandonment of his case. But if time and energy are to be expended, even unnecessarily, it is much more desirable that such expenditure should occur at administrative levels. On balance, we believe that an applicant should be encouraged in rather than penalized for, promptly filing a better application after final rejection instead of appealing, especially where so much of the procedural machinery of the Patent Office is designed to permit just such a remedy.
The trials of the everyday practice of patent prosecution are here poignantly demonstrated. Hitchings was allegedly wrong for not appealing (continuation application filed March 1, 1960) while here Herr is allegedly wrong for appealing (final rejection March 16, 1960). We would all do well to heed the Commissioner’s admonition, infra, to help inventors.
Before res judicata can be applied in any situation, the initial consideration is to determine precisely what issue was previously adjudicated in making the further determination as to whether res judicata is applicable. In the present case, we previously decided that the 17-methyl derivative of Herr “would be an obvious structural change to a chemist of ordinary skill in that field,” cf. Papesch, supra, and that since the specification did not teach anabolic and androgenic activity, we could not consider the evidence of the unexpected properties of the claimed compounds.
While we are here dealing with the same compound as before and with an issue which also arises under section 103, it is apparent that patentability of the compound has taken on a new light for the “structurally obvious” compound, when considered as a whole, has been shown to possess new and unobvious properties. Thus, under Papesch, we are here dealing with a new issue notwithstanding the fact that the same patent claims are again before us. It is but coincidental that the same combination of words assembled in the form of a patent claim can define to one of ordinary skill in the art subject matter that is “structurally obvious” but which may well be patentable under the tests of obviousness enunciated in Graham v. John Deere Co., supra. “Structural obviousness” is simply not the obviousness required by section 103 to render an invention unpatentable.
While I appreciate the dissenter’s position here in asking why we, a federal appellate court, should again consider matters arising under section 103, this is not the entire problem. The dissent *627characterizes the problem here as being merely one of evidence and seems to consider that appellant created the problem by choosing to appeal the earlier board decision. The dissent also portrays, as contrary to some undefined public policy, “endless litigation,” creating commercial markets, and attorneys putting their worst foot forward for the best interest of their clients.
The record does not establish or even intimate any wrong doing on appellant’s part. He is but pursuing the procedures afforded him by the patent statute. In fact, the record establishes that appellant had something less than a “free choice” concerning his first appeal and filing a second application in the Patent Office, a situation quite common in the practice of patent law. The facts set forth, supra, speak for themselves. Appellant had overcome the only reference cited by the examiner, and had been successful in an interference. Only after this was the allowance of his claims withdrawn and an old rejection reinstated as a final rejection. At this time appellant was involved in two other interferences. As appellant’s brief states:
* * * The priority of the disclosure of the subject matter sought to be patented as oral androgenic and anabolic agents has been adjudged not to reach to his parent case, and applicant must be content to whatever priority benefit otherwise accrues to him from that disclosure.
Appellant probably could have filed a second application and sought a determination whether the requirements of sections 120 and 112 were satisfied in order to secure priority benefits. However, the better course of action in appellant’s view was to seek an early determination, in view of the pending interferences, whether the properties relied on to establish unobviousness were supported by the specification there involved. We held support was lacking and appellant sought a new filing date. It is interesting to note that the examiner in this case relied on a patent having a filing date after the filing date of the parent application. Thus, the issue of obviousness was considered under totally different circumstances.
It is precisely because of the complex nature of patent prosecution, where one act may affect several rights, that the statute has provided for the filing of continuing applications. Appellant but followed a prescribed course of action, sanctioned by law, in filing a second application with a second fee which entitled him to a new determination of his right to a patent.
Should the fact that the board and this court had become involved in the first application act as a bar which negates this statutory right? I think not, especially where the only basis advanced for such a bar is res judicata. Such an indiscriminate application of res judicata could wreak havoc on the present system of examining applications and could lead to prolonged prosecution in the Patent Office. While piecemeal litigation is certainly to be avoided, much is to be said for the taking of appeals which may serve to simplify future litigation.
There is no question but that the single interest of administrative expediency will be served by a broad application of the doctrine of res judicata and would have the salutory effect of removing a few appeals from our docket. The more important issue, however, is whether such an application of the doctrine serves any public purpose in so doing. I am convinced that the savings in time in the Patent Office would be very small indeed, and that the injustices possible under it are too large a price to pay. While we sit as a federal appellate court wherein a broad reach may be the general rule as to the res judicata “doctrine, that is not to say that we are obligated to act accordingly particularly in view of the nature of the issues which come before us. As a doctrine, res judicata is to be applied in the public interest. It is paramount to the public interest that issues once litigated be closed to relitigation. It is, however, also in the public interest that applicants for pat*628■ents be protected in their rights to secure patents according to the Patent Act of 1952. The duty of the Commissioner of Patents under this Act was stated by him, quoted in In re Gustafson, 331 F.2d 905, 911, 51 CCPA 1358, 1366, as follows: .
The main operations of the Patent Office are, of course, the examination of patent applications and the granting of patents on patentable inventions. Promptness of examination is an important element of our work. Further, in addition to our responsibility of protecting the public by refusing to grant patents on unpatentable inventions, we should also make it our job to assist the inventor or his ■attorney in a positive manner to arrive at proper claims covering his invention where the invention is patentable, and I wish to request that we give greater emphasis in the future towards fulfilling this key function. [Our emphasis.]
I therefore concur in the majority ■opinion and express my substantial agreement with the pertinent observations contained in Judge Rich’s concurring opinion.
The board opinion acknowledges, 136 US PQ at 385:
In the parent application the abacus was disclosed as oriented with the rods arranged one under the other so that the numbers represented on the rods by the counters would be in an array at right angles to the normal arrangement when written. This is in contrast to the instant case which discloses precise*624ly the same means as oriented with the rods at 90° to that of the parent case so that the numbers represented by the counters on the rods would be in horizontal array consonant with the mode of writing numbers under our system of notation. This mode of use correlates the written system of numbers with tlieir representation on the abacus.
. Kananen, Comments and Observations on Res Judicata and Patent Law, 18 W.Res.L.Rev. 103, 115 (1966).
. See 33 Geo.Wash.L.Rev. 1149 (1905).