Application of Dalton

(specially concurring) .

This specially concurring opinion is written merely to elaborate what is said in the majority opinion relative to the “affidavit question,” which is referred to also in the dissenting opinion.

Former Rule 138 of the Patent Office, 35 U.S.C.A. Appendix, which was in effect at the time the Board of Appeals passed upon the case, read: “138. Affidavits or exhibits submitted after the case has been appealed will not be admitted without remanding the application to the Primary Examiner for reconsideration; but the appellate tribunal may in their discretion refuse to remand…