concurring,
with whom Almond, Judge, joins.While I agree that the disclosure in the Flynn patent is insufficient to constitute an anticipation of the claimed invention, I cannot agree with the language of the principal opinion that for the rejection based on an anticipation to have been proper, “the Flynn reference must clearly and unequivocally disclose the claimed compound or direct those skilled in the art to the compound without any need for picking, choosing, and combining various disclosures not directly related to each other by the teachings of the cited reference.”
The test which determines whether an invention has been anticipated by a reference is whether the description of the invention in the reference is “sufficient to put the public in possession of the invention.” In re LeGrice, 49 CCPA 1124, 1131, 301 F. 2d 929, 933, 133 USPQ 365, 369 (1962), citing Curtis on Patents, 3d ed., Sec. 378 and Seymore v. Osborne, 78 U.S. (11 Wall.) 516, 555 (1870). See also In re Brown, 51 CCPA 1254, 329 F. 2d 1006, 141 USPQ 245 (1964); In re Sheppard, 52 CCPA 859, 339 F. 2d 238, 144 USPQ 42 (1964); In re Bird, 52 CCPA 1290, 344 F. 2d 979, 145 USPQ 418 (1965); In re Borst, 52 CCPA 1398, 345 F. 2d 851, 145 USPQ 554 (1965); In re Baranauckas, 55 CCPA 1204, 395 F. 2d 805, 158 USPQ 24 (1968); In re Hoeksema, 55 CCPA 1493, 399 F. 2d 269, 158 USPQ 596 (1968); In re Wilder, 57 CCPA 1314, 429 F. 2d 447, 166 USPQ 545 (1970); and In re Moore, 58 CCPA 1341, 444 F. 2d 572, 170 USPQ 260 (1971). I find it unreasonable to assume that Judge Rich and Judge Lane intend to overrule this long line of cases sub silentio. If what they intend is merely to rephrase the accepted test so as to simplify its application, they have missed the mark.
*811The language used in the principal opinion would not in fact simplify the determination of the suitability of a reference as an anticipation under 35 USC 102. That language requires the tribunal to analyze the teachings of a reference to determine which are equivocal and which are unequivocal. It must also be determined which disclosures are directly related to each other by the teachings of the reference, thus making picking and choosing proper, and which disclosures are only indirectly related, or are not related at all. This is no simpler than reading the reference as a whole and determining what it fairly teaches to one of ordinary skill in the art.
Tire more important difficulty with the position taken in the principal opinion is that it misdirects the inquiry. It directs the tribunal to analyze the structure of the reference rather than its content. The real question is not how logically the various disclosures in a reference are related to each other, it is rather what the reference fairly teaches to one of ordinary shill in the art, no matter1 how ineptly it does so. Of course, the more logically the reference is laid out the clearer will be its teachings and the easier will be the job of those who must interpret it. But the law requires us to determine whether the invention has been identically described, not whether it has been logically described by the reference.
The Flynn reference has been described in both the principal opinion and the dissent. I will therefore merely state what I would consider that reference fairly teaches to one of ordinary skill in the art. Flynn does disclose the cephalosporin C-type precursor of the instantly claimed CA-type compound. The precursor is one of approximately 38 C-type compounds specifically disclosed. Flynn teaches how C-type compounds can be converted to Cc-type compounds by heating with water under acid conditions, or converted to CA-type compounds by refluxing in an aqueous solution with an excess of a tertiary amine. Pyridine is specifically referred to as an example of a tertiary amine which will work, but a list of over 15 other tertiary amines is given. With regard to antibacterial effect, Flynn discloses that Cc-type compounds are not as good as C-type compounds, and C-type compounds are not as good as CA-type compounds. As pointed out by the dissent, Flymi considered the Cc-type and CA-type analogues of the specifically disclosed C-type .compounds to be some of the compounds “available in accordance with the present invention.”
I would not place as much weight as the dissent does on Flynn’s statement that tire Cc-type and CA-type analogues were considered within the scope of the invention. Such statements in the specification regarding the breadth of the invention are generally too speculative to be given great weight. In the instant case, all that statement does is focus some additional attention on Cc-type compounds and CA-type *812compounds. In my view, that attention is not a significant addition to the disclosure, since Flynn’s remarks regarding the antibacterial activity of the compounds are sufficient to emphasize the CA-type compounds as the most desirable. The difficulty is that Flynn gives 88 or so possible precursors and 15 or so tertiary amines which will react with those precursors to form CA-type compounds. The Flynn disclosure, considered as a whole, does not sufficiently direct one skilled in the art to the claimed compound. ■, . .
. I disagree with the principal opinion on one last point. The opinion seems to suggest that we violate due process whenever we consider portions of a reference not specifically mentioned by the examiner or the board. I know of no requirement that the examiner and the'board must list the sentences in the reference upon which they rely, nor can I see any sense in imposing such a requirement. All of the disclosure of a reference must be considered for what it fairly teaches .one of ordinary skill in the art. In re Meinhardt, 55 CCPA 1000, 1004, 392 F. 2d 273, 276, 157 USPQ 270, 272 (1969). As Judge Smith aptly stated in Meinhardt:
[T]he board relied on the same [reference] as the examiner to sustain the rejection. Assuming arguendo that the board relied on a portion of the [reference] ignored by the examiner, this could not constitute a new ground of rejection in view of In re Azorlosa, 44 CCPA 826, 241 F.2d 939, 113 USPQ 156 (1957), which holds, in pertinent part, that it is proper for the court and necessarily, the board, to consider everything that a reference discloses.
In re Meinhardt, supra, 55 CCPA at 1008-09, 392 F. 2d at 280, 157 USPQ at 275. See also In re Halley, 49 CCPA 793, 296 F. 2d 774, 132 USPQ 16 (1961); In re Van Mater, 52 CCPA 1076, 341 F. 2d 117, 144 USPQ 421 (1965).