
    253 F. 2d 430; 117 USPQ 217
    In re Glaberson
    (No. 6362)
    
      United States Court of Customs and Patent Appeals,
    March 21, 1958
    
      Cromwell, Ctreist & Warden (Raymond L. Qreist of counsel) for appellant.
    
      Clarence W. Moore (D. Kreider of counsel) for the Commissioner of Patents.
    [Oral argument March 6,1958, by Mr. Greist and Mr. Kreifler]
    Before Johnson, Chief Judge, and O’Connell, Worlet, Rich, and Jackson (retired) Associate Judges
   Rich, Judge,

delivered the opinion of the court:

This appeal is from the decision of the- Board of Appeals affirming the examiner’s rejection of appellant’s claim iii application serial No. D-26,605, filed August 27, 1958, for a design for a safety razor Case. •

The references relied upon are:

Sehladermundt et al., D-165,346, Dec. 4,1951.
Wark et al., D-172,912, Aug. 24, 1954.
Beeken Book, 1942, page 301, Item 301 H 4.
National Carbon Co., May 1, 1926, pages 1 and 2.

It became belatedly apparent at the oral argument in this court that the Wark et al. reference may not legally be used as a reference to show prior art since the application for that patent was not filed until November 20, 1953, nearly three months after the filing of appellant’s application. 35 U. S. C. 102. The Patent Office solicitor conceded at the argument that this legal error had been made.

Since it is evident that both the examiner and the Board of Appeals proceeded under a misunderstanding, the éxaminer definitely relying on Wark et al. and the board finding that “the examiner’s action is without reversible error,” and the parties having briefed the case on the same misunderstanding, we are reversing the decision of the board and remanding the case to the Patent Office with instructions to reexamine the. application without regard to the Wark et al. patent. We express no opinion on the merits at this time.

Jackson, J., retired, recalled to participate.  