# In re Samour

> Court of Customs and Patent Appeals · February 23, 1978 · 571 F.2d 559

URL: https://www.frixlaw.com/law-library/cases/8904780

## Case

- **Full name:** Application of Carlos M. SAMOUR
- **Court:** Court of Customs and Patent Appeals
- **Decided:** February 23, 1978
- **Citations:** 571 F.2d 559; 197 U.S.P.Q. (BNA) 1; 1978 CCPA LEXIS 323
- **Precedential status:** Published
- **Opinion:** Concurrence by Baldwin
- **Judges:** Baldwin, Lane, Markey, Miller, Rich
- **Cited by:** 28 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8904780

## How later opinions describe it (automated extraction)

- noting the rule in the § 103 context and declining to extend that rule to § 102(b) rejections

## Opinion text

BALDWIN, Judge,
concurring.
I would not resolve this case on the broad “key issue” stated in the majority opinion. The issue should recognize the fact that the primary reference provided strong evidence that the described compound was made and tested. This fact is relevant to the anticipation issue. The fact exists in this case and we should not now attempt to decide future cases in which the fact does not exist.
If the issue in the case is as broad as the majority suggests. The court is abandoning our often expressed view that not every document which sets out a chemical structure. “describes” the chemical compound which has the structure. The matter is far too important to be handled as dicta. If the mere recitation of a formula “describes” a claimed compound, what life is left in Judge Rich’s statement, speaking on behalf of the court, that “a formula is not a compound and while it may serve in a claim to identify what is being patented, as the metes and bounds of a deed identify a plot of land, the thing that is being patented is not the formula but the compound identified by it.” In re Papesch, 315 F.2d 381, 391 , 50 CCPA 1084, 1097, 137 USPQ 43 , 51 (1963).
A compound is described by a reference, in my view, if the reference recites the structure and recites or reliably and accurately predicts at least one significant property of the compound. In the case before us, I would treat the actual existence of the compound as legally equivalent to such a significant property.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8904780. Public record. Not legal advice.