Application of Hubert J. Tierney and Bertrand Y. Auger

I agree with the decision of the majority on the issue of “nonobviousness” over the prior art under 35 U.S.C. § 103. However, I believe that before this issue can properly be decided, it is necessary to dispose of the rejection of appellants’ claims on the ground of res judicata. My opinion is that this rejection should have been reversed. In re Hellbaum, 371 F.2d 1022, 54 CCPA 1051 (1967).

The application here on appeal is denominated by the appellants as a “continuation” of Serial No. 767,583 filed October 16, 1958, in which an appeal to the Board of Appeals resulted in a decision adverse to…