The opinion
SMITH, Judge
(dissenting).
Dealing as we are here with a dyestuff, it seems to me that much more is involved than structural similarities and differences of the chemical compounds per se. 35 U.S.C.. § 103 admonishes us to consider the invention as a whole in view of the prior art which existed at the time the invention was made. The legal determination of obviousness must be made under these conditions and with the limitations specified in section 103.
Structural similarities of the claimed invention and the prior art are to be compared as is done in the majority opinion. However, it is the differences between the prior art and the claimed invention which must be ascertained and then the claimed invention as a whole must be evaluated as to its obviousness to one of ordinary skill in the art. I do not find such an evaluation in the majority opinion and I find its legal conclusion as to obviousness to be factually unsupportable. Judge Martin’s dissent points out the technical differences, largely in terms of chemical structure, and finds that the “general basket disclosure” of the references does not “render the claimed compounds prima facie obvious,” contrary to the majority’s finding.
Additionally, it seems to me the consideration of chemical structures alone to determine whether chemical compounds are “prima facie obvious” is contrary to the inquiry required by the statute. The majority applies section 103 here by determining that the claimed compounds are “prima facie obvious” on the basis of chemical structure and that appellants have failed to show proof of an “unexpected result.” Nowhere in the majority opinion do I find a consideration of the invention as a whole. The obviousness or unobviousness of an invention in the chemical field should not be made to turn on the narrow issue of structure per se. It is an important factor to be weighed but it remains only a single factor which is not here a determinate factor when the invention as a whole is considered.
*230 My analysis of the invention as a whole begins with a consideration of the composition which appellants produced for a specific end purpose, i. e., a dyestuff to produce a desired color effect on particular textile materials. To. achieve this end, appellants devised particular substituents at certain points on the diazo ring. The prior art admittedly produced a dyestuff in the yellow range but it did not teach varying those chemical structures in the manner disclosed by appellants to achieve the results sought by appellants..
I find nothing in the majority opinion pointing to any teaching in the prior art which would make appellants’ invention obvious to those of ordinary skill in this art. It seems to me that the majority opinion jumps to its stated legal conclusion without support from the record. My independent consideration of the record convinces me that appellants’ invention as a whole may well have been un-obvious under the stated conditions of section 103. However, despite this personal opinion and giving due consideration to all the factors considered by the majority, the case on the present record presents such a clear case of doubt as to the ultimate legal conclusion of obviousness of the invention as a whole that I would resolve the doubt in favor of appellants. In re Nurkiewicz, 338 F.2d 1020 , 52 CCPA 848.