In Re Berwyn E. Etter

NIES, Circuit Judge, with whom SMITH and BISSELL, Circuit Judges,

join, concurring.

While I agree with the result reached by the majority, I disagree with the majority opinion insofar as it holds that, in a reexamination proceeding, a patent is never accorded the presumption of validity. In this case it makes no difference whether the presumption is or is not applied, as the board itself stated. The holding that the claimed invention would have been obvious over art not previously considered is fully justified, had the presumption been recognized.

This case illustrates the advantage of the new…