¶154 CCPA
¶2James M. Mason, New Haven, Conn., D. Paul Weaver, Washington, D. C., Donald Brown, Anthony DeLio, New Haven, Conn., for appellants.
¶3*761Clarence W. Moore, Washington, D. C. (Fred W. Sherling, Washington D. C., of counsel), for Commissioner of Patents.
¶4Before RICH, Acting Chief Judge, MARTIN, SMITH, and ALMOND, Judges, and Judge WILLIAM H. KIRKPATRICK*
¶7This is an appeal from the Board of Appeals’ affirmance of the rejection of claims 23, 25, and 27 of appellants’ application1 entitled “Method for Making Benzo (a) Quinolizine Derivatives.” The rejection is based upon 35 U.S.C. § 103. No claim has been allowed.
¶8Appellants’ invention is a one-step process in the over-all synthesis of the naturally occurring compound (-)-emetine (hereinafter emetine) having the structural formula:3
¶9Naturally occurring emetine3 is an established drug in the treatment of amoebiasis, amoebic hepatitis, and amoebic abscesses. According to appellants:
Because of the expense in extraction procedures necessary to recover the naturally occurring alkaloid Emetine from “ipecac root,” it became a scientific objective to develop a synthetic route to the preparation of synthetic Emetine having a stereochemical structure identical with that of natural Emetine.
¶10The gross structure of emetine was elucidated in 1949 and this, according to an article by A. R. Battersby and J. C. *762Turner, J.Chem.Soc. 717 (1960) “stimulated considerable interest in the synthesis of this alkaloid.” At the time of these early synthetic studies, according to Battersby and Turner, the stereo-chemistry of the four asymmetric centers in emetine (denoted by asterisks in the above formula) was unknown. Subsequent studies, however, established that the stereochemistry on the benzoquinolizine nucleus is that shown above, and this knowledge, the authors state, allowed a stero-specific synthesis to be designed.
¶11The process here claimed is actually the fourth step in a seven-step synthesis of emetine, the fourth step being as follows :4
¶12Exocyclic Unsat.
¶13Ester Novel
¶14Saturated 2, 3 Trans Ester
¶15The significant aspect of this reaction :is that the hydrogen which attaches to C-2 projects below the plane of the three-membered benzoquinolizine nucleus, whereas the hydrogen on C-3 is above the plane of such nucleus. The two hydrogens just referred to are thus in a *763trans position 5 relative to each other. This is the stereochemical configuration found in naturally occurring emetine, as shown in the structural formula reproduced above. According to appellants, this configuration is maintained throughout the emetine synthesis.
¶16The prior art relied upon below is Swiss Patent No. 337,846, published June 15, 1959.6 This patent discloses the following reactions:
¶17It should be noted that only the gross structures and not the stereochemical configurations of the reactants and products are disclosed.
¶18A subsequent publication (A. Brossi and O. Schnider, Helv. Chimica Acta J5, 1899 (1962)) disclosed the stereo-chemistry of the compounds involved in the hydrogenation reaction:
¶19Appellants contend that formation of the 2,3-trans isomer via their hydrogenation process is unexpected in view of the Swiss patent (as further elaborated on by the 1962 publication). The examiner and the board, of course, disagreed. The reasoning of the examiner and the board can be summarized as follows: Those in the subject art knew that naturally occurring emetine had the following stereo-*764chemical configuration in the 2,3-post tion:
¶20The Swiss patent (as further elaborated on by the 1962 publication) disclosed a hydrogenation process wherein the incoming hydrogen to C-2 attached below the plane of the rings just as does the corresponding hydrogen in appellants’ process. The prior process did not give the appropriate stereochemical configuration for emetine because the hydrogen groups in the 2- and 3- positions were cis rather than trams. This result would have been different if the hydrogen on C-3 of the starting material had been above the plane of the rings. All appellants have done in obtaining the proper configuration is to reverse the positions of the groups on C-3 in their starting material. It is clear from this analysis that the Patent Office focused only on C-2 in arriving at its conclusion that the results of appellants’ hydrogenation process were expected.
¶21Appellants appear to argue for a different point of reference than C-2, specifically the configuration of the hydrogen and alkyl groups on C-3. They analyze the situation this way: The Swiss patent discloses a hydrogenation process in which the incoming hydrogen approaches C-2 on the same side of the ring as the hydrogen attached to C-3 and on the opposite side of the ring from the alkyl group attached to C-3. However, in the process here claimed the hydrogen approaches on the opposite side of the ring from the hydrogen attached to C-3 and on the same side of the ring as the alkyl group attached to C-3. According to appellants, this is the reason why the trams configuration is obtained in their process. They further state:
… scientists having in front of them the process of the Swiss patent, and carrying through this process to the inactive end product corresponding to Emetine would be discouraged, since it is essential that this hydrogenation process, step 4, produces the 2, S-trans relation which remains the same in subsequent steps in the preparation of active Emetine corresponding to the naturally occurring alkaloid. [Emphasis appellants’.]
¶22The trouble with both the board’s and the appellants’ view of the obviousness or nonobviousness of the subject invention is the reliance on the 1962 publication which is not prior art. Nor can it be regarded as describing the state of the art prior to the filing date of the application on appeal. Quite the contrary, it evidences the fact that further experimentation was required to elucidate the structure of the compounds involved in the hydrogenation process disclosed in the Swiss patent upon which the appealed claims stand rejected. Additionally, appellants do not admit that the subject matter described in the 1962 publication was known to them as of the filing date of the application at bar. The foregoing facts clearly distinguish the 1962 publication from the publication considered in In re Wilson, 311 F.2d 266, 50 CCPA 773. It is very often the case that early endeavors in a scientific field are incomplete and sometimes unsophisticated, and were we to consider as relating back after-acquired knowledge bearing on such earlier work, interim efforts leading to significant advances in the art would go unrewarded. This is entirely contrary to the spirit of the patent system which is “to promote the progress of science and useful arts …
¶23Focusing on the Swiss patent, the only prior art cited against appellants’ claims, it does not teach or concern itself with the stereospecific synthesis of (-) eme-tine. Nowhere is there mentioned the stereochemical configuration of the starting material or product of the hydrogenation process disclosed in the Swiss patent. Appellants’ invention however, considered as a whole, appears to represent a signifi*765cant advance in the art. The one-step process which is the subject of the appealed claims is an integral step in the stereo-specific synthesis of (-) emetine, and appellants have recognized it as such. Nothing in the Swiss patent would make such a discovery obvious. Accordingly, we find the subject matter here claimed nonobvious under 35 U.S.C. § 103 and reverse the board’s decision.
¶24Reversed.
¶25SMITH, J., took no part in the decision of this case.
¶26MARTIN, J., participated in the hearing of this case but died before a decision was reached.