LANE, Judge.
This is an appeal from the decision of the Patent and Trademark Office Board of Appeals affirming the examiner’s rejection of claims 6, 7, 10-18, and 21-25, all of the claims in application serial No. 866,420, filed September 30, 1969, for [1325]*1325“New Yulcanizable and Vulcanized Compositions Containing Polyperoxide.” We reverse.
Background
Appellants’ application returned to ex parte prosecution after appellants lost an interference with United States Letters Patent 3,409,600 to P. R. A. Maltha and S. B. Tijssen. None of the claims on appeal were counts. The sole basis of rejection is under 35 U.S.C. § 103, the rejected claims being held obvious in view of the subject matter of the counts of the interference. The sole issue on appeal is whether claims may be rejected under 35 U.S.C. § 103 on the ground that a losing party to an interference is not entitled to claims which are asserted to be obvious variations of the invention defined in the counts, when section 102(g) and interference estoppel are not applicable.
The Interference
Appellants’ parent application (serial No. 285,857) was filed in the United States Patent and Trademark Office on June 6, 1963. Subsequently, on October 10, 1963, Maltha et al. (hereinafter Mal-tha) filed a patent application, a division of which issued as United States Letters Patent 3,409,600 on November 5, 1968. The Maltha patent claims a process and compositions within the scope of serial No. 285,857, in the sense that an act which infringes the claims of the Maltha patent would infringe the claims of serial No. 285,857. Appellants thereafter filed a continuation-in-part application, serial No. 866,420, which is involved in this appeal. This application contained claims copied from the Maltha patent and included a request for an interference. All of the claims of the Maltha patent were copied. The class of peroxy compounds disclosed and for which protection was sought in serial No. 866,420 was broader (i. e., included more species) than the class of peroxy compounds disclosed and claimed in the Maltha patent.
Thereafter patent interference No. 97,-329 was declared between Maltha and the appellants herein. Maltha was accorded the benefit of his Netherlands application No. 284,315, filed October 12, 1962. Based only on their foreign priority date Maltha became the senior party and prevailed in the interference, receiving an award of priority.
During the course of the interference appellants moved to add additional counts to include species disclosed in the patent which were within the scope of the interference counts and also to add counts to species which were not disclosed in the patent but were within the scope of the interference counts. These motions were refused entry by the interference examiner.
Following the adverse award of priority, appellants’ application returned to ex parte prosecution with claims directed to the species just described, as well as claims to other species neither disclosed in the patent nor within the scope of the interference counts. All of these claims differ from the interference counts in one or more material respects. Claims 6 and 13, which are representative, are reproduced in the appendix to this opinion together with the interference counts.
The Examiner’s Rejection
The examiner rejected the claims under 35 U.S.C. § 103 as unpatentable in view of the counts of the interference, or in view of the Maltha patent. The examiner concluded that the instant claims would be obvious to one of ordinary skill in the art from the counts of the interference. Appellants have made no attempt to prove any new or unexpected results.
The Board’s Decision
The board interpreted the reasoning of the examiner to mean that the subject matter sought to be patented was barred to appellants by reason of the adverse award of priority as to the counts of the interference.
The board agreed with appellants that if an interference involves two applications, a party who fails to make a mo[1326]*1326tion to add all common subject matter may be estopped from later obtaining claims to such subject matter, but that if (as here) an interference involves a patent, there is no estoppel.
The board considered appellants’ argument that since appellants’ application had an earlier effective United States filing date than the Maltha patent, from which the claims which corresponded to the interference counts were copied, the counts could not be considered “prior art” under 35 U.S.C. § 102(g).
The board answered by saying:
We specifically indicate that the rejection is not that the claims are unpat-entable over [sic, under] 35 USC 102(g) coupled with 35 USC 119. Rather, the rejection is on the basis that appellant [sic] has lost the interference and, in view of the adverse decision on priority, is not entitled to claims which correspond to or are obvious variations of the invention as defined in the counts of the interference. This is the line of reasoning advanced by the third member of the Board in the Hilmer case [In re Hilmer, 57 CCPA 985, 424 F.2d 1108, 165 USPQ 255 (1970), herein after Hilmer (IT)], * * * where, while concurring in the result, he stated, “I see no reason to go beyond the concession of priority filed by Hilmer et al — ”.1 Since his view was not determinative of the appeal, the court limited itself to only the correctness of the reasoning of the majority.2
The board noted that appellants had not alleged that their invention produced any new or unexpected result over that produced by the invention of Maltha represented by the lost counts, and held that appellants’ claims “either fall within the scope of the invention defined by the counts or are obvious variations thereof.” Appellants contended there is no evidence of record that the invention defined in the counts was made in this country by another before appellants’ invention. The board responded:
If we were to follow appellants’ reasoning to its logical conclusion, we would condone a situation in which, by presenting claims, drawn sequentially, to compounds containing carbon chains from 1 to 20 carbon atoms, or to obvious variations of the compounds, the losing party in an interference with a patent, (which relied on a foreign priority date) could be granted a patent which would cover all aspects of the invention defined in the counts of the interference as to which he has been adjudicated not to be the first inventor. Obviously, this would make a mockery of the interference practice.
The Solicitor’s Position
The solicitor, representing the Commissioner of Patents and Trademarks, has taken the position that the counts which appellants lost in the interference are “prior art” to appellants. It is the solicitor’s position that having lost the counts in an interference, the subject matter of the lost counts is statutory prior art to the losing party under 35 U.S.C. § 135(a). The solicitor observes that section 135 provides that the losing party is not entitled to claim the subject matter of the lost counts. Therefore, the solicitor reasons, the subject matter of the lost counts is statutory prior art to the losing party in the same anticipatory sense as the statutory prior art de[1327]*1327scribed in 35 U.S.C. § 102, and also within the meaning of the term “prior art” in 35 U.S.C. § 103.
OPINION
Section 135
An applicant who has lost an interference is not entitled to claims which correspond to the subject matter of the counts of the interference. A determination of priority of invention adverse to an applicant constitutes the final refusal by the Patent and Trademark Office of the claims involved. 35 U.S.C. § 135. Neither party contends that the claims on appeal “correspond” to the counts in the interference.
We turn now to the statutory construction of 35 U.S.C. § 135(a) which the solicitor here presents to this court as a novel proposition of law and for the first time in the prosecution of appellants’ application. As the solicitor is well aware, this court will not ordinarily consider arguments put forward for the first time in this court. In re Allen, 324 F.2d 993, 998, 51 CCPA 809, 815 (1963). Nevertheless, we have elected to consider this argument in the present case because of its guidance potential and because our view thereof cannot prejudice appellants.
The solicitor suggests that the provision in 35 U.S.C. § 135(a) that an adverse award of priority in an interference “shall constitute the final refusal by the Patent and Trademark Office of the claims involved” means that the subject matter of the counts is statutory prior art to the losing party in the same anticipatory sense as the statutory prior art described in section 102—and also within the meaning of the term “prior art” in section 103. Nothing in the legislative history of 35 U.S.C. § 135(a) supports the solicitor’s position. The Reviser’s Note, 35 U.S.C.A. § 135, explains:
The first paragraph states the existing corresponding statute [R.S. 4904] with a few changes in language. An explicit statement that the Office decision on priority constitutes a final refusal by the Office of the claims involved, is added.
The Commentary on the New Patent Act, by P. J. Federico, 35 U.S.C.A. at 37-38, confirms this, and states further, “The sections just mentioned, 131 to 135, deal with procedure in the Patent Office, of which only a small part is reflected in the statute.” (Emphasis added.) A reading of section 135(a) confirms that all its provisions relate to procedure rather than substance.
In support of his statutory construction, the solicitor reasons that because the claims corresponding to the counts are unpatentable to the losing party, the subject matter of the counts must be statutory prior art to the losing party. The weakness of this reasoning is apparent. The purpose of section 135(a) was, in part, to provide a new procedure to economize time and work in the further prosecution of the losing party’s application. The final refusal of claims by the Patent and Trademark Office may be based, inter alia, on statutory prior art or loss of right to a patent or an estop-pel. The inference that the counts (i. e., the subject matter of the counts) must be statutory prior art to the losing party merely because section 135(a), as a matter of Patent and Trademark Office procedure, provides for automatic “final refusal” of claims corresponding to the counts by virtue of the adverse award of priority, is unwarranted. We specifically reject the novel proposition that 35 U.S.C. § 135(a) is a statutory prior art section, and hold that neither the counts nor the subject matter of the counts is statutory prior art by virtue of this section of the statute.
Section 103
The examiner rejected the claims under 35 U.S.C. § 103 as unpatentable in view of the counts of the interference, or in view of the Maltha patent. Since the examiner’s position was not specifically reversed by the board (37 CFR 1.196(a)) we shall discuss the propriety of these positions. In re Halliwell, 358 F.2d 1008, 53 CCPA 1112 (1966). It was the exam[1328]*1328iner’s position that the subject matter of the appealed claims would have been obvious at the time appellant’s invention was made to a person having ordinary skill in the art in view of the counts of the interference, i. e., the subject matter of the counts, see Hilmer (II), 424 F.2d at 1110, 57 CCPA at 987, or in view of the disclosure of the Maltha patent. Since a section 103 rejection must be based on evidence (statutory prior art, admissions against interest, etc.) we shall first consider the status of the subject matter of the counts lost in the interference, and the disclosure of the Maltha patent, as statutory prior art with respect to the appealed claims.
The subject matter of counts lost in an interference is not, for that reason alone, statutory prior art to the losing party. We must therefore consider whether the subject matter of the counts lost in the interference falls within a prior art paragraph of section 102. If it is found that the subject matter of the lost counts is prior art under section 102, it may be used alone or in combination with other references under section 103. In re Harry, 333 F.2d 920, 51 CCPA 1541 (1964).
We must first determine when and where the subject matter of the lost counts was invented in order to ascertain the significance of the lost counts with respect to section 102. Appellants’ parent application was filed June 6, 1963. Appellants were restricted to that date by the Board of Patent Interferences. The decision of the board awarding priority to Maltha necessarily implies that Maltha made the invention of the counts prior to June 6, 1963. We conclude that the date of the invention of the subject matter of the lost counts must be prior to June 6, 1963. The place where Mal-tha made the invention of the counts appears from the evidence to have been outside the United States, since Maltha was awarded priority on the basis of his Netherlands filing date.
The board’s opinion in the present case indicates reliance on the line of reasoning advanced in the concurring opinion of the Board of Appeals in Hilmer (II), set forth in footnote 1, supra. The board stated that because the reasoning advanced in the concurring opinion in Hilmer (II) was not determinative of that appeal, this court reviewed only the correctness of the reasoning of the majority of the board. Our analysis should not be confined to the board’s reasoning alone since we review the decision of the board on the stated ground of rejection and not merely its reasoning in support of that decision. Hunt v. Treppschuh, 523 F.2d 1386, 1388 (Cust. & Pat.App. 1975).
We have recently reviewed the consequences of a concession of priority with respect to the count of an interference. See In re Ogiue, 517 F.2d 1382 (Cust. & Pat.App.1975). Therein we held that an applicant’s refusal to copy claims which he could make resulted in a concession of priority (termed a “disclaimer in 37 CFR 1.203(b)) that the subject matter of those claims is the prior invention of another in this country under section 102(g) and thus prior art to that applicant under section 103. Id. at 1390-91. That is the legal consequence of a concession of priority which does not depend on when or where the subject matter of the claims not copied was invented. Id. at 1391 n. 3. Such consequences are imposed when an applicant, by refusing to copy claims, prevents an award of priority based on evidence of record. However, when, as in the present case, priority is awarded on the basis of evidence of record, the law will not infer facts which are contradicted by facts of record. The evidence of record in the present case consists of the factual allegations in the motion of Maltha to be accorded the benefit of his Netherlands filing date, and to shift the burden of proof. This motion, supported by the necessary documents (37 CFR 1.224), granted by the primary examiner and the Board of Patent Interferences, is evidence, accepted by the Patent and Trademark Office, that Maltha made the invention of the counts outside the United States. Because of the significantly different consequences which may ensue from an [1329]*1329award of priority based on evidence of record, as opposed to inferences made in the absence of evidence, we find the board’s reliance on a theory of concession of priority inapposite in the present case.
The board’s opinion concludes with the statement set forth above, critical of the significantly different consequences which may ensue from an award of priority based on prior invention in this country, which is prior art under section 102(g) and section 103, as opposed to an award based on prior invention in a foreign country, which is not prior art under section 103. As we said in Hilmer (II), if the law as it has been written by Congress creates anomalous situations, then it is for Congress to decide whether to change the law. See Hilmer (II), 424 F.2d at 1113 n. 6, 57 CCPA at 991 n. 6. We are aware that Congress is currently considering legislation to amend the patent statute. It may well wish to consider whether it would be desirable to amend Title 35 so that a foreign priority application is for all purposes given the status of an application filed in United States on the day it was first filed in a foreign country, a matter on which we express no opinion.
We have considered whether the subject matter of the counts lost in the interference falls within any “prior art” paragraph of section 102 other than section 102(g), and find that it does not. The subject matter of the lost counts is not prior art under section 102(a) because it was neither known nor used by others in this country before appellants’ effective filing date. Further, there is no evidence that the invention disclosed in Maltha’s Netherlands application No. 284,315, filed October 12, 1962, was either patented or published before appellants’ effective filing date. With respect to section 102(b), Maltha’s Netherlands application No. 284,315 was not even filed more than one year before appellants’ effective filing date, June 6, 1963.
With respect to section 102(e), the effective date of the disclosure of the Mal-tha patent vis-a-vis an application filed in the United States is the United States filing date of Maltha. In re Hilmer, 359 F.2d 859, 882-83, 53 CCPA 1288, 1318-20 (1966), hereinafter Hilmer (I). The United States filing date of the Maltha patent is subsequent to appellants’ effective date. Therefore the disclosure of the Maltha patent cannot be prior art under section 102(e).
There is no other statutory basis for finding that either the subject matter of the lost counts or the disclosure of the Maltha patent is prior art, in the sense of 35 U.S.C. § 103, to appellants.
Obvious Variations of the Lost Interference Counts
The board noted that appellants have neither introduced any evidence of unob-vious results, nor have they even argued the question of obviousness. We assume, without deciding, that the claims on appeal are directed to obvious variations of the invention of the counts. The question remains whether there is any judicial doctrine which will support a rejection under 35 U.S.C. § 103 of such claims.
The solicitor has directed our attention to several cases which involve rejection of claims of a party losing an interference, using the counts of the interference as prior art. None of these cases involved an interference decided on the basis of the winning party’s right to the benefit of an earlier foreign filing date under 35 U.S.C. § 119, or corresponding earlier statutory provisions. We briefly review each of the cases cited by the solicitor.
In In re Cole, 82 F.2d 405, 23 CCPA 1057 (1936) this court held that when an applicant has conceded that he is not entitled to a patent for the subject matter embraced in the interference counts, claims thereafter presented must be “inventively different” from the interference counts. The court in Cole relied on In re Williams, 62 F.2d 86, 20 CCPA 738 (1932); In re Dodge, 74 F.2d 756, 22 CCPA 870 (1935); and In re Sola, 77 F.2d 627, 22 CCPA 1313 (1935), which are also relied on by the solicitor here. [1330]*1330In Williams, after the declaration of the interference, the appellants filed a disclaimer and canceled their claims which corresponded to the interference counts, which was held to have been an admission that they were not entitled to the counts and that they were also not entitled to any subject matter failing to “define invention” thereover. In Dodge the subject matter of the interference counts was conceded by the appellant to be in the prior art and hence unpatentable to anyone. In Sola the appellant conceded priority of invention. As we discussed in Ogiue, supra, absent evidence of where the invention was made, conceding priority of the subject matter of counts is an admission that such subject matter is the prior invention of another in this country under section 102(g) and thus prior art under section 103. Further, when an applicant, as in Dodge, concedes the subject matter of the interference counts is in the prior art, it is inappropriate to question the propriety of using such subject matter as if it were prior art with respect to claims presented by that applicant. See In re Hellsund, 474 F.2d 1307, 1311, 59 CCPA 1382, 1387 (1973); In re Nomiya, 509 F.2d 566, 570-71 (Cust. & Pat.App.1975).
In In re Karplus, 97 F.2d 100, 25 CCPA 1192 (1938) this court relied upon the holding in Cole to reject claims as not “patentably distinct” over the count of an interference. The Board of Appeals’ opinion had noted that the Kar-plus application had been involved in several interferences, each of which was terminated by dissolution rather than by any award of priority. From the Kar-plus Petition for Rehearing it appears that the subject matter of the count had, during the interference, been held to be in the prior art and therefore unpatentable to anyone. Karplus was estopped by the interference judgment to assert that the subject matter of the count was not in the prior art.
The appeal in In re Fenn, 315 F.2d 949, 50 CCPA 1163 (1963) followed an interference which had been dissolved after appellant filed an abandonment of the contest, 37 CFR 1.262(b). See Schnick v. Fenn, 277 F.2d 935, 938 n. 2, 47 CCPA 1174, 1178 n. 3 (1960). Under 37 CFR 1.262(b), this court held that the appellant stood in the same position as he would have had there been an award of priority adverse to him with respect to the interference count. The issue presented was whether the appealed claim distinguished patentably from the interference count. 315 F.2d at 950-51, 50 CCPA at 1165. Both parties in Schnick v. Fenn, supra, had worked in this country. Therefore, with respect to Fenn, the subject matter of the count may be considered to have been the prior invention of another made in this country.
Finally, the solicitor directs our attention to a portion of the principal opinion of the court in In re Bass, 474 F.2d 1276, 1289-90, 59 CCPA 1342, 1359 (1973). In the page referred to by the solicitor it is first stated that prior invention under section 102(g) is prior art. The facts of the present case do not comply with the “in this country” provision of section 102(g) and it is therefore inapplicable. The page referred to by the solicitor then distinguishes the facts of Bass from the facts of Hilmer (I). The facts of the present case are analogous to the facts of the Hilmer cases in that here, as there, we are asked to give an invention apparently made outside the United States the same effective date as a reference as it would have had, had it been made in this country. This is contrary to what we have found to be the express desire of Congress and statutory limitations to events which take place in the United States. We find nothing in the page referred to by the solicitor which is relevant to the present case.
The board based the rejection under 35 U.S.C. § 103 on the theory that an applicant who has lost an interference can never be entitled to claims which are obvious variations of the invention defined in the lost counts. We find no judicial doctrine which supports this rejection under 35 U.S.C. § 103.
[1331]*1331
Conclusion
The decision of the board affirming the rejection of claims 6, 7, 10-18, and 21-25 is reversed.
Reversed.
APPENDIX
The Subject Matter
The subject matter of the claims is a vulcanizable composition comprising a mixture of a polymeric compound capable of being cross-linked to form a thermoset material, and a cross-linking agent in an amount sufficient to effect the desired degree of cross-linking. The cross-linking agent is a polyperoxy compound having at least two peroxy groups (-00-). One oxygen atom of each of two of these per-oxy groups is linked to a common carbon atom. The other oxygen atom of each of these two peroxy groups is linked to a tertiary carbon or silicon atom of an organo group. A simplified drawing of one pair of these peroxy groups may be illustrated as:
I
(t-group)-OO — C-00-{t-group)
I
The common carbon atom is part of an aliphatic group which has at least two carbon atoms and includes at least one carboxy group. This carboxy group may be present as an acid ( — COOH), an ester
0 0
(-COOR), an acid anhydride (-C-0-C-), or a metal salt ( — COOM). The cross-linked composition which is the product of heat-curing this vulcanizable composition is also claimed. Claims 6 and 13 are representative:
6. A vulcanizable composition comprising an intimate mixture of a polymeric compound capable of being cross-linked to form a thermoset material, and cross-linking agent in an amount sufficient to afford about the desired degree of cross-linking, which agent is a polyperoxy compound having at least two peroxy groups, one of the oxygens of each of two of said peroxy groups being linked to a common carbon atom and each of the other oxygens being linked to a tertiary atom of an organo member which tertiary atom is selected from the class consisting of carbon and silicon and said common carbon atom being part of an aliphatic group selected from those having 2-3 or 5-6 carbons plus at least one carboxy group and those having 4 carbons plus at least one carboxy group selected from
-COOH, -COOM and -C-0-C-, where M is a metal ion.
13. A cross-linked composition comprising the product of heat curing a composition comprising an intimate mixture of a ploymeric compound selected from the class consisting of solid poly-olefins and elastomers and a cross-linking agent in an amount sufficient to convert said polymeric compound to a cross-linking thermoset material, which agent is a polyperoxy compound having at least two peroxy groups (one pair), one of the oxygens in each of said per-oxy groups of one pair being linked to a common carbon atom and the other oxygen being linked to a tertiary atom, selected from the class consisting of carbon and silicon, of an organo group selected from the class consisting of aliphatic hydrocarbon, cycloaliphatic hydrocarbon, aralkyl hydrocarbon and silyl having not more than a total of 24 carbon and silicon atoms; said common carbon atom being part of an aliphatic group selected from those .(a) having 2-3 or 5-6 carbon atoms, having only saturated linkages between said carbons, plus at least one acid group selected from the class consisting of -COOH; -COOR; -COOM, and
0 0
n ti
—C—O-C—, and (b) having 4 carbon atoms with only saturated linkages between said carbons plus at least one acid group selected from -COOH, 0 0
—COOM and —C—O—C—, where R is a straight chain aliphatic hydrocarbon group having 1-18 carbon atoms and where M is a metal ion.
[1332]*1332
The Interference Counts
1. In a process for cross-linking a copolymer of ethylene and a monomer containing a CH2 = CH- group with the aid of a peroxidic initiator, ■ the improvement comprising employing as an initiator a compound having the general formula
o
—
(CH3)3C-0-0-C-0-0-C(CH3)3
ch2
ch2 I
C = 0
OR
in which R is a hydrocarbon group having not more than 20 carbon atoms.
2. A process as defined in count 1, in which the cross linking is carried out in the presence of at least one added auxiliary agent.
3. An article comprising a cross-linked copolymer of ethylene and a monomer containing a CH2 = CH- group obtained by the process defined in count 1.
4. A new composition of matter comprising a copolymer of ethylene and a monomer containing a CH2 = CH-group, and an organic compound having the general formula
■a n
(CH3)3C-0-0-C-0-0-C(CH3). 3'3
ch2 I
CH„
I
C = 0
OR
in which R is a hydrocarbon group having not more than 20 carbon atoms.
5.A new composition of matter as defined in count 4 containing in addition at least one added auxiliary agent.