dissenting.
I cannot agree with the majority that cephaloridine is not “described” in the Flynn patent in the sense of 35 USO 102(e).
It cannot be said, of course, that cephaloridine per se is exflieitly named by Flynn, but a dear implicit description is sufficient. In re Baranauckas, 43 CCPA 727, 228 F. 2d 413, 108 USPQ 226 (1955). Reference to the Flynn disclosure will establish, I submit, that such a description exists in the present instance.
The principal opinion has set forth portions of the generic and more specific disclosure of Flynn relied on by the board. The class of cepha-losporin compounds disclosed generically by Flynn may be divided into several groups, of which the groups designated as cephalosporin C type and cephalosporin Ca type (cephaloridine is a Ga type) are of *813particular interest Rere.1 After observing that “in general, those compounds which possess the cephalosporin Ca nucleus are more effective antibacterially than those containing the cephalosporin G nucleus,” Flynn goes on to name and describe several specific compounds having the cephalosporin O nucleus:
The following examples, together with the [75] operating examples appearing hereinafter, will illustrate the types of compounds available in accordance with the present invention:
* * * * , % *
[There follows a list of 24 specific 7-acylamidocephalosporanic acids, i.e., cephalosporin O type compounds. As noted 'by the board, two of the 15 operating’ examples referred/ to, examples 4 and 10, describe the potassium and sodium salts of 7-(2'-thienylacetamido) eephalosporanic acid (the sodium salt is known commercially as “eephalothin”). Appellant reacts that particular eephalosporanic acid with the tertiary amine pyridine to obtain the- claimed cephalosporin type compound, cephaloridine.]
and the like, including the cephalosporin Ga and cephalosporin Ce analogues thereof. [Emphasis supplied.]
. There.can be no doubt from the above disclosure that Flynn regarded the cephalosporin Ca analogues of each of the mentioned cepha-losporin O type compounds to form an integral part of his disclosed invention. In particular, it is evident that Flynn does explicitly disclose the cephalosporin Ga analogues of Examples 4 and 10. As to how to obtain those Ca analogues from cephalosporin C type compounds, he states that compounds of the cephalosporin Ca class “can be obtained by applying to appropriate 7-acylamidoeephalosporanic acids the conversion procedures of Belgian Patent 593,717.” Flynn had earlier stated, as pointed out by the board and majority here, just whát those “conversion procedures” are, viz. that “Cephalosporin C is also readily converted into compounds of the cephalosporin Ca type by refluxing in aqueous solution with an excess of pyridine, for example, as described hi Belgian Patent 593,777.” 2 [Emphasis supplied.]
I think it is clear that Flymi directs one of ordinary skill in the art, who is interested in particular cephalosporin Ca analogues of the 37 or so cephalosporin C type compounds Flynn specifically discloses, to prepare them by reacting the appropriate 7-acylamido cephalo-sporanic acid with the particular tertiaryamine pyridine. Following those instructions, one of ordinary skill in this art would easily pre*814pare the 'C¿ (pyridine) analogue of tlie particular cephalosporin C type compound described in Examples 4 and 10, which analogue is cephaloridine. Each and every one of the Ca (pyridine) analogues of that relatively small number of cephalosporin 0 compounds has been effectively, or implicitly, described by Flynn. To be sure, appellant is claiming only one of them, but it is no less described than any of the others.
From what has been said of Flynn, it should be evident that there is no need in this case for those skilled in the art to resort to picking and choosing various disclosures unrelated to each other 'by the reference teachings, as the principal opinion implies. On the contrary, the disclosures of cephalosporin C compounds, cephalosporin G& compounds, and how to make them are all interrelated by Flynn himself. It should also be evident that the reference itself contains the full equivalent of the board’s “postulations”, which are quoted in footnote 3 and later deprecated in the principal opinion. Finally, it should be evident that the rejection rationale as stated herein is substantially identical to — not a reformulation of — that expressed by the board.
The principal opinion also criticizes the board for reading into references “things that are not there.” My difficulty with that position stems from its disregard for the “things” — or “blaze marks” — that are there. In my opinion, the majority is groping for reversible error where none exists. As far back as 40 years, and over the years since, it has been a firm principle that this court would not reverse decisions of the tribunals below in highly complex areas of technology unless manifest error was shown. See, e.g., In re Wietzel, 17 CCPA 1079, 39 F. 2d 669, 5 USPQ 177 (1930); In re Bertsch, 30 CCPA 813, 132 F. 2d 1014, 56 USPQ 379 (1942); In re Stoll, 34 CCPA 1058, 161 F. 2d 241, 73 USPQ 440 (1947). Heedless to say, such error has not been shown here.
Although the majority would undoubtedly disclaim the notion, I cannot help but feel that it is resolving doubt on the issue presented in favor of the applicants. In doing so, this court is not doing the applicants or the public any favor. Rather it is bestowing on the applicants a license to litigate of dubious validity at a time when, it is reliably estimated, 80% of contested patents are being held invalid in other federal courts. And the other sad result here is to take from the public that which is already theirs by imposing on them a monopoly that should not exist. Appellants have given the public nothing it had not already been given by Flynn. I would remind my colleagues that patents are not like party favors to be passed out at random. The enabling statutes established under the Constitution clearly require more than appellants have offered as a quid pro quo to the public in exchange for the monopoly the majority awards them.
I find no error in the board’s decision, and would affirm.
For purposes here, cephalosporin Ca type compounds differ from cephalosporin C type compounds in the R1 substituent attached to the methyl group located at the 3 position of the basic cephalosporin (cephem) nucleus. The Ca type compunds have a tertiary amine attached- to that methyl group, whereas the C type compounds have an acyloxy group so attached. See the formula and definitions under “The Rejection” portion of the principal opinion. Cephaloridine has a pyridine radical attached to the 3-methyl group.
Belgian 593,777 does indeed disclose obtaining of “antibiotic substances which are transformation products of Cephalosporin C and are called Cephalosporin Ca compounds" by “treatment of Cephalosporin C in aqueous solution with a weak, tertiary base, for example pyridine, collidine or quinoline. If pyridine is used, the antibiotic obtained is called Cephalosporin Ca (pyridine).”