Interference No. 103,950
the Sasse statement was dictum and therefore not binding
precedent. 120 F.3d at 1238-39, 43 USPQ2d at 1635.
Unlike the unanimous opinion in In re Sasse, two judges
concurred in In re Heinle, 342 F.2d at 1008, 145 USPQ at 136-
37. Judge Almond, joined by Judge Martin, states "I cannot
agree with the majority that it is unnecessary to rely upon
the disclaimers in order to reverse the board." The
concurring judges felt that the claimed element "is obvious"
and therefore the terminal disclaimer was necessary to prevent
"an unlawful extension of the monopoly." All concerned can
recognize the truism that a concurring opinion can be
characterized as a want-to-be majority opinion and that a
court's majority opinion, not a concurring opinion, is what
counts. The fact that
(1) two of the five CCPA judges participating in
Heinle found it necessary to rely on the
disclaimers to reverse,
(2) that the majority does not explicitly state in
its opinion that the concurring judges have it
wrong and
(3) all five judges seem to say that the majority
did not find it necessary to rely on the
disclaimers,
-24-
Page: Previous 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Next
Last modified: November 3, 2007