(concurring).
I am satisfied this is a clear case for reversal, but for reasons other than those stated by the majority.
While I agree that the art of record collectively establishes obviousness of the structural formula and analgesic activity of the compound defined by the claim on appeal, I am unable to agree that a finding of an improvement in activity in esters of the type here involved, obtained from piperidinols, compared to those obtained from piperidine carboxylic acids, would be wholly unexpected to one of ordinary skill in the art with those references before him. To conclude otherwise, it seems to me, is to deny the realities of the situation; for the plain fact is that, without exception, the Elpern II compounds demonstrate potency greater than that possessed by the Elpern I compounds. While those compounds differ structurally in two respects, there is no reason to believe that either is not responsible, at least in part, for that increase in activity.
I would therefore reverse on what to me is a much sounder basis, both in law and on the facts presented, namely that the art makes no suggestion whatever that a reversal of the ester linkage would result in an increased activity approximating the nineteen-fold increase found by appellant. At the very best, the art suggests an increase of the order of four to eight times. This is a far cry from what appellant found.
The question is not, it seems to me, whether the art suggests an improvement, but rather whether it reasonably suggests the particular improvement relied upon for patentability in both its qualitative and quantitative sense. See In re Lunsford decided March 17, 1966, 357 F.2d 380, 53 CCPA -. As in all section 103 cases, the important consideration is: does the prior art make obvious to those of ordinary skill what appellant has found ?