(dissenting).
Initially, I observe that the Board of Appeals here consisted of an examiner-in-chief and two acting examiners-in-chief. Appellants do not challenge the legality of that board. For the reasons expressed in my dissenting opinion in In re Wiechert, 370 F.2d 927, 54 CCPA 957 (1967), the decision of such a board in my view is a legal nullity which I feel should be raised sua sponte whenever it occurs. However, even accepting the majority’s view on this issue as decided in the Wiechert case, I would reverse rather than affirm the decision of the board.
I fully agree with what seems to be the reasoning of the majority that no reasonable basis exists for selecting the claimed dimensions from the Hansen reference. To do so is to ignore the teachings of Hansen as a whole. Furthermore, I see no reasonable basis in the art of record which would suggest selecting all of the claimed dimensions for the strips of wood forming the reconstituted wood structure.
I am unwilling to do as the majority seems to have done and substitute my expertise for the consideration given to the claims by the Patent Office. Appellants’ specification asserts that the dimensions of the individual wood particles before compression into a reconstituted wooden article is “fairly critical.” Unfortunately, he does not say why or in what way these dimensions are “critical.” In any event, appellants chose to assert such “critical” dimensions in their claims.
Both the examiner and the board, properly I think, gave attention to these claimed limitations, and chose to resolve the deficiency of either Fairchild or Walsh et al. with selected teachings of Hansen. Appellants’ affidavit under Rule 132 and the accompanying exhibits were submitted to establish that there is a “critical” difference between using wooden strands that are 0.150" thick, within the scope of the appellants’ claims, and 0.250" thick, outside appellants’ claimed strand thickness. According to the affidavit, less surface planing on the product of appellants’ invention was needed. I would give weight to appellants’ affidavit and exhibits since the selection of particle thickness is not taught, disclosed or suggested by. Walsh et al.
The error of the majority resides, I think, in its casting aside of the recognition by the Patent Office of the deficiencies of Walsh et al. with respect to appellants’ specific claims. Our review should be narrowly confined to the record and to the decision of the board. The stated basis for the rejection on either of the basic references requires a consideration of the Hansen reference. I think the use of the teachings of Hansen is prompted by hindsight and is thus in error. Therefore, the rejections, as stated, must fall. Consequently, I would reverse the decision of the board.