Appeal No. 1999-1729 4
Application No. 08/527,217
specification, page 1. It is further stated that, “$-lactam ring forms the principal skeletal
structure of a large number of antibiotics including penicillin as a typical example to play
a core role in the physiological activity thereof.” Id. Moreover, we find that the $-
lactam compound prepared in Example 1, “was found to have strong antibacterial
activity,” which evidences that the compound was tested for pharmacological activity.
It is well settled that, “tests evidencing pharmacological activity may manifest a
practical utility even though they may not establish a specific therapeutic use,” and hence
are sufficient to satisfy the utility requirement. See Nelson v Bowler, 626 F.2d 853, 856,
206 USPQ 881, 883 (CCPA 1980). “Knowledge of the pharmacological activity of any
compound is obviously beneficial to the public. It is inherently faster and easier to
combat illnesses and alleviate symptoms when the medical profession is armed with an
arsenal of chemicals having known pharmacological activities. Since it is crucial to provide
researchers with the incentive to disclose pharmacological activities in as many
compounds as possible, we conclude that adequate proof of any such activity constitutes
a showing of practical utility.” Id.
Based upon the above findings, we are satisfied that the how to use requirement
of the statute, 35 U.S.C. § 112, has been complied with by the disclosure of the
specification.
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