Chemical Formula

Claims to chemical compounds and compositions containing chemical

compounds often use formulas that depict the chemical structure of the compound.

These structures should not be considered indefinite nor speculative in the absence

of evidence that the assigned formula is in error. The absence of corroborating

spectroscopic or other data cannot be the basis for finding the structure indefinite.

See

Ex parte

Morton,

134 USPQ 407 (Bd. App. 1961), and

Ex

parte

Sobin,

139 USPQ 528 (Bd. App. 1962).

A claim to a chemical compound is not indefinite merely because a

structure is not presented or because a partial structure is presented. For example,

the claim language at issue in

In re

Fisher,

427 F.2d 833, 166 USPQ 18 (CCPA 1970) referred to a

chemical compound as a “polypeptide of at least 24 amino acids having the following

sequence.” A rejection under

pre-AIA 35 U.S.C. 112

, second

paragraph, for failure to identify the entire structure was reversed and the court

held: “While the absence of such a limitation obviously broadens the claim and raises

questions of sufficiency of disclosure, it does not render the claim indefinite.”

Chemical compounds may be claimed by a name that adequately describes the material to

one skilled in the art. See

Martin

v.

Johnson,

454 F.2d 746, 172 USPQ 391 (CCPA 1972). A compound of

unknown structure may be claimed by a combination of physical and chemical

characteristics. See

Ex parte

Brian,

118 USPQ 242 (Bd. App. 1958). A compound may also be

claimed in terms of the process by which it is made without raising an issue of

indefiniteness.