dissenting:
The rejection of the single claim here involved by the respective tribunals of the Patent Office was predicated solely upon the Richardson et al. article, from which the majority quotes all matter that seems in anywise pertinent here.
I have been unable to divest myself of the impression that the Richardson et al. article, fairly construed, teaches those skilled in the art (to say nothing of the unskilled), that substantially pure gamma, gamma-dipyridyl has no practical value as an insecticide, even though it may have been found to possess some slight toxic qualities. I note particularly the statement in the third excerpt quoted from the article, reading:
“Experiments soon demonstrated that purified y y dipyridyl was only slight toxic, if at all * * [Italics mine.]
It may be conceded — indeed it is apparent — that purified gamma, gamma-dipyridyl was tested in certain of the experiments recited in the reference, because it is clear from the above, and from other of the excerpts quoted in the majority opinion, that it was compared with the other substances respecting its toxic effect, but it is the teaching of the result obtained which I conceive to be of moment here.
Had the public accepted, without. question, the teaching of the article, it seems certain that no “substantially pure gamma, gamma-*965dipyridyl” ever would have been developed as an insecticide. Appellant here did not accept it, but investigated further and discovered its usefulness. The last of his experiments described in the majority opinion, in particular, indicates a very high toxic value in the insecticide field, which, it seems to me, is directly contrary to the teaching of the Richardson et al. article under a fair and normal construction of the quoted excerpts taken altogether.
I do not regard the decision in the case of In re Colin, 29 C. C. P. A. (Patents) 757, 124 F. (2d) 219, 52 USPQ, 89, cited below and by the majority here as controlling in this case. In that case it was found by the examiner that in the publication which constituted the reference in that case, the authors “cautioned the reader that under a different set of conditions a different result might be obtained.” That, I thought, was an invitation — indeed a suggestion — to make further investigations relative to the practical utility of the product described in the publication. We have no such invitation or suggestion here. I do not regard the Thuau case, cited by the majority, as controlling, but there is no reason for discussing it in a dissenting opinion.
I must frankly say that I think it would have been well had appellant here couched his claim in somewhat different language, or included an additional claim more limited than the one presented, but there is no question in my mind that his specification discloses matter which supports the claim as written. Were it granted, it, of course, would be measured by the specification in any test of its validity.
Believing the claim to be properly allowable, I respectfully dissent.