Practising Law Institute, Faber on Mechanics of Patent Claim Drafting, 7th Edition, Chapter 6 Composition of Matter
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`6.1 In General
`Compositions of matter are products where the chemical nature of the substances or materials used, rather than the shape or form of a
`product, is the distinguishing characteristic. As with machines versus manufactures, there is no need to determine the statutory pigeonhole
`between manufacture and composition. If one had a situation where both the form and composition of a material were required for novelty,
`or otherwise to be claimed, it would not be necessary to designate into which class the claim fell.
`
`As in the other classes, most composition claims are combination claims, except where a new compound or molecule per se is claimed.
`Even those involve combinations of the chemical elements, and groups of elements, or radicals. Composition claims are usually fairly easy
`to prepare, as to formulating a claim; the main problems relate to the allowable scope of the claims, such as: How many examples are
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`needed to support a generic claim? 1 How close can one come to the prior art? Problems in broad functional definitions of materials
`(section 3:24) are especially acute. 2
`
`One simple example of a composition claim to a combination of materials follows:
`
`11. A zinc electroplating solution, comprising:
`(a) an aqueous solution of zinc acetate, from 30 to 90 grams per liter;
`(b) citric acid, from 1.5 to 3 times the zinc acetate concentration; and
`(c) an alkaline pH-modifying substance in an amount sufficient to adjust the pH 3 to a value of from 4 to 5.5.
`
`Note that the “elements” of a composition claim are chemical elements or compounds, described either broadly (element c) or narrowly
`(elements a and b), depending on the prior art. Note that the “pH modifying substance” clause is very similar to a “means clause” in that it
`tells what function the element performs, not what it is. Presumably, any alkaline substance would work in the combination, and the point of
`invention concerned establishing the stated pH range, not how to establish it. Means clauses are not often if ever used in composition
`claims, but the author sees no theoretical reason why they could not be, as: “means for adjusting the pH of the solution to a value of from 4
`to 5.5” or perhaps “a substance for . . .” because it is not necessary to use only the word “means” to meet 35 U.S.C. § 112(f), (section
`3:29). As described in section 3:29, the statute says “an element in a claim for a combination”; it does not limit this to any particular type of
`combination.
`
`In a composition claim, it is usually not essential to state the intended use for the composition in the preamble. Under classic rulings, a
`label such as “zinc electroplating solution” will not save the claim if the composition per se is old for another use. (See further comments in
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`Practising Law Institute, Faber on Mechanics of Patent Claim Drafting, 7th Edition, Chapter 6 Composition of Matter
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`section 6:7, new use claims.)
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`A composition of matter, claimable under the patent law, may be a new molecule, compound, solution, mixture, and even a living being,
`etc.,
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`although, in the case of a mere physical mixture of materials, an obviousness question is very likely to be raised. However, the test should
`be whether it would have been obvious to associate the materials, not how they are associated. Ex parte Dubsky & Stark4 is one case
`allowing claims to a physical mixture. Although the components of the mixture (a polymerizable compound and a chelate) were intended to
`react to form a compound, the mixture had a substantial shelf life and thus could be claimed. The Board implied that, if the reaction were
`instantaneous, the mixture could not be claimed because it would have no substantial existence.
`
`Special problems come up in the metallurgical arts in claiming new alloys, usually nowadays including changes in proportions of known
`ingredients to achieve new properties or advantages. Also, as discussed in section 6:6, it is often permissible to refer to an area of a
`component diagram shown in the drawings to define proportions of ingredients in metallurgical cases.
`
`In the early 1960s, the Board of Appeals settled a long-standing philosophical debate by allowing claims to new atoms. Claim 1 of patent
`3,156,523 reads “Element 95” (now called americium) and claim 1 of patent 3,161,462 reads “Element 96” (curium). 5 The Board of
`Appeals held that the claims were directed to proper statutory subject matter, but that both elements were anticipated as having been
`inherently produced in the prior art (Enrico Fermi et al. patent), etc. The C.C.P.A. held the elements were neither anticipated nor obvious in
`view of the prior art, and that any prior production was minuscule and unknown. (Many might question the basic conclusion as to the
`obviousness of a new atom per se. 6 )
`
`A typical type of claim to a new organic molecule: 7
`
`12. A compound having the formula:
`R–CH = N–S–X,
`wherein
`R is an alkyl group selected from the group consisting of methyl, ethyl and isopropyl; and
`X is a halogen selected from the group consisting of chlorine and bromine.
`
`Note that the foregoing claim covers a total of six specific compounds, for any use to which they can be put. This illustrates the
`very common class of inventions in which new molecules are claimed by structural formula. It also illustrates the use of what is
`termed “Markush,” or alternative, terminology to cover several different compounds with a single claim (see section 6:2).
`
`See section 2:9 for comments on dependent composition claims, and section 6:8 on Jepson-type claims in this area.
`
`Summary Composition of matter claims list the chemical ingredients (compounds, elements or
`radicals) making up the composition or compound. The ingredients or elements may be claimed
`narrowly (specific named components), with intermediate scope (a group of similar elements
`functionally equivalent), or broadly as to function performed, where the prior art permits. Where
`necessary to novelty, etc., the proportions or other conditions or parameters of the compound are
`stated, usually in ranges of concentration of ingredients. The intended use for the composition (rust
`inhibition, antibiotic) may or may not be stated in the preamble. (See section 6:7 for details on the
`effect of preamble limitations.) The problems in chemical practice come primarily with obviousness
`questions over prior art and how much disclosure is needed in the specification, not primarily in
`the techniques of drafting claims.
`
`6.2 “Markush” Expressions
`Markush expressions are alternative expressions described in M.P.E.P. section 2173.05(h):
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`Practising Law Institute, Faber on Mechanics of Patent Claim Drafting, 7th Edition, Chapter 6 Composition of Matter
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`A Markush claim is commonly formatted as: “selected from the group consisting of A, B, and C;” however, the phrase
`“Markush claim” means any claim that recites a list of alternatively useable species regardless of format.
`
`Ex parte Markush sanctions claiming a genus expressed as a group consisting of certain specific materials. Inventions in
`metallurgy, refractories, ceramics, pharmacy, pharmacology and biology are most frequently claimed under the Markush
`formula but purely mechanical features or process steps may also be claimed by using the Markush style of claiming, see Ex
`parte Head, 214 U.S.P.Q. 551 (Bd. Appl’s 1981); In re Gaubert , 187 U.S.P.Q. 664 (C.C.P.A. 1975) and In re Harnisch , 206
`U.S.P.Q. 300 (C.C.P.A. 1980).
`
`Further, as to the form of language for a Markush grouping M.P.E.P. section 2173.05(h) states: “It is improper to use the term ‘comprising’
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`instead of ‘consisting of.’” In other words, the group must be recited as closed-ended.
`
`Rather than using “selected from the group consisting of,” one can simply list the group members, with “or” preceding the final member
`(see below in this section). Although “a” used as an article to introduce a claim element could mean one or more in an open-ended patent
`claim, “a” used with “consisting of” indicates only one member of a Markush group. The claim at issue 8 included a list of Lewis acid
`inhibitors in a Markush group. It later referred to “a” Lewis inhibitor. This was held not to refer to more than one inhibitor, but to indicate
`only one of those inhibitors. That is because a Markush group is closed-ended.
`
`Furthermore, Markush grouping can lead to possible double inclusion of a claimed element. An example in the M.P.E.P. section
`2173.05(h) is a Markush group: “selected from the group consisting of . . . halogen . . . chloro . . .” The group is acceptable although
`“halogen” is generic to “chloro.” The claim itself must be evaluated for indefiniteness.
`
`The Markush expression is commonly used in chemical cases as it deals with naming a selected group of materials. However, practitioners
`sometimes use them in nonchemical, for example, mechanical and electrical cases, where the rationale for the use of such an expression
`will equally apply. 9 The Manual section says it may be used for “purely mechanical features,” like simple screws or staples, or even
`individual large, complex structures. It may be used for “process steps,” for example, gluing or stapling.
`
`A Markush group is a sort of homemade generic expression covering a group of two or more different materials (elements,
`radicals, compounds, etc.), mechanical elements, or process steps, any one of which will work in the combination claimed.
`However, “the entire [Markush group or] element is disclosed by the prior art if one alternative in the Markush group is in the prior art.” 10
`
`There are two requirements to satisfy a Markush group: (1) the generic field must be present and (2) one of the specified members of the
`group must be in the generic field. In Biovail Laboratories, Inc. v. TorPharm, Inc. , 11 the claim was “a wetting agent” “from the group
`consisting of” several chemicals. To meet this claim element, a material must be both the generic “wetting agent” and one of the
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`group members. The “wetting agent” was not defined merely by being a member of the group. The court separately construed the term
`“wetting agent” from the prosecution history, dictionaries, and treatises. In addition, it had to be a group member. But a group member that
`is not also a wetting agent would not satisfy the generic term “wetting agent.”
`
`The Patent and Trademark Office published guidelines on February 9, 2011, 12 for compliance with the indefiniteness provision of section
`112(b). They do not alter any discussion in this section. As another requirement in the guidelines, a Markush group is indefinite if the
`species or members of the group do not share a “single structural similarity” or a common use.
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`© 2016 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service
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`Practising Law Institute, Faber on Mechanics of Patent Claim Drafting, 7th Edition, Chapter 6 Composition of Matter
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`Treatment of a claim element as a Markush group occurs even if that treatment was not intended. 13 For example, prior art teaching one
`member of the group will be prior art as to the entire Markush group. 14 If you do not intend to claim a Markush group, do not use
`alternative language for a series of related alternative elements.
`
`A typical example, from the previous section, Claim 12:
`
`. . . a halogen selected from the group consisting of chlorine and bromine.
`
`Note that this covers either chlorine or bromine, either of two specific elements out of five in the halogen group, and acceptable alternative
`claiming (discussed in section 3:16). The Markush doctrine originated out of necessity. In the previous example, there is no generic word
`for the specified group of two halogens out of five. To refuse a generic claim because of a paucity of language seems unreasonable. Thus,
`Markush language is used to create an artificial generic expression.
`
`Mr. Markush’s claim in question involved: “a material selected from the group consisting of aniline and halogen substitutes of aniline.”
`
`Markush terminology may be used in claims in any of the statutory classes of utility patents; wherever several alternative types of material
`are involved. Thus, although the claim may be to a mechanical structure, an article of manufacture, the particular element of that structure
`that is described by a Markush expression may be a chemical type limitation. As an example of an article of manufacture, in the resistor of
`section 5:1, if the only materials that would work for the
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`terminal stripes were copper, silver and aluminum, or if for any other reason a claim limited to those three materials were desired, clause
`(c) of Claim 7 could read as follows: “a stripe of a conductive metal selected from the group consisting of copper, silver and aluminum at
`each end of the core in electrical contact with the carbon coating.”
`
`For a process claim including a series of materials or elements that may be used as alternatives, consider the example in section 4:7 of
`treating polyethylene articles, and suppose that the acid could be only concentrated sulfuric, nitric, or phosphoric acid.
`
`The claim would then read:
`
`5A. A process for treating the surface of a polyethylene article to increase its receptivity to a printing ink, which comprises:
`exposing the surface of the article to a saturated solution of sodium dichromate in an acid selected from the group consisting
`of concentrated sulfuric, nitric and phosphoric acids.
`
`Markush group claiming can be extended to alternative process steps. In a process limitation, the Markush group consists of a group of
`steps: “. . . weakening the bond by a process selected from the group consisting of heating, freezing, and pulling the pieces apart. . . .” In
`Claim 5A above, the exposing step may be written as an additional Markush grouping, “wherein the exposing is performed by a process
`. . . ,” or “wherein the exposing step is selected from the group consisting of dipping, spraying and painting” or even “wherein the exposing
`is done by dipping, spraying or painting,” since the “or” alternative is also permitted, see below.
`
`In the foregoing examples, the italics indicate the Markush phraseology. The precise format should, but not must, be followed exactly. The
`Markush expression preferably has the form “a _______ selected from the group consisting of _______ . . . and ________.” Note that the
`word “consisting” limits the claim to the named group, as mentioned in section 2:6.
`
`An interesting example is from Stebbings patent 3,234,948 on a cheese filter cigarette: “2. A cigarette filter according to claim 1, in which
`the cheese comprises grated particles of cheese selected from the group consisting of Parmesan, Romano, Swiss and cheddar cheeses.”
`This illustrates the use of a Markush expression to define one element of an article of manufacture claim.
`
`The claim in which the expression appears may have the transition word “comprising” after the preamble, but the Markush expression of
`the claim may never include “comprising.” Instead, the Markush expression must begin only with “the group consisting of.”
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`© 2016 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service
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`Further, the group members are listed separated by commas. Where the Markush expression is introduced by “selected from the group
`consisting of,” the final member of the group is preceded by the conjunction “and.” 15 Proper practice also permits claiming in the
`alternative using “or,” if a Markush group would have been proper, but then you omit the formulaic “selected from the group consisting of”:
`
`When materials recited in a claim are so related as to constitute a proper Markush group, they may be recited in the
`conventional [Markush] manner, or alternatively. For example, if “wherein R is a material selected from the group consisting
`of A, B, C and D” is a proper limitation, then “wherein R is A, B, C or D” shall also be considered proper. 16
`
`Under this modification, in the example of Claim 7, one could recite a “stripe of copper, silver or aluminum. . . .” This is much simpler and
`covers the same thing as the regular Markush form.
`
`Improper use of the Markush form, even if unintentional, may have an unexpected result. In Superguide Corp. v. DirecTV Enterprises, Inc.
`, 17 the patentee claimed “. . . information which meet at least one of the desired program start time, the desired program end time, the
`desired program service, and the desired program type. . . .” The Federal Circuit said that language required one member of each category
`be present in order to meet the claim element. Had “or” been used in place of “and,” there might have been only need for one element from
`one category to meet the claim element. Alternatively, had the expression begun “information which meet at least one of the group
`consisting of the desired program . . . ,” that would have become a properly recited Markush group and the patentee’s construction might
`have prevailed.
`
`There once was a policy against Markush claims of diminishing or varying scope (Claim 1—the group A, B, C, and D; Claim 2—A, B, and
`C), but this is now considered proper unless “such a practice renders the claims indefinite [this would be rare] or if it results in undue
`multiplicity.” 18
`
`Markush claims also may be allowed as subordinate (“subgenus”) claims under a broader (“genus”) claim not naming particular materials
`19 (see section 6:9 on generic and species claims). Under this liberalized practice, for example, Claim 1 could cover conductive
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`materials broadly; Claim 2, a Markush group of five materials; Claim 3, a limited group of three preferred materials; etc.
`
`When claiming specific compounds per se (that is, molecules), questions have arisen in how closely related the members of the Markush
`group must be for the claim to be proper: could one claim such disparate things as air, earth, fire, or water? Polypropylene, benzene
`hexafluoride, tantalum sesquinitride, or undiscovered element 117? M.P.E.P. section 2173.05(h) requires that the materials in the Markush
`group must ordinarily “belong to a recognized physical or chemical class or an art-recognized class.” Air, earth, fire, and water would not
`suffice.
`
`Unlike Markush groupings that recite materials or a compound, Markush groups in a claim reciting a process or a combination need not
`belong to one class. 20 M.P.E.P. section 2173.05(h) says “it is sufficient if the members of the group are disclosed in the specification to
`possess at least one property in common which is mainly responsible for their function in the claimed relationship, and it is clear from their
`very nature or from the prior art that all of them possess this property.” This lends itself to making a broad range of mechanical equivalents,
`sharing one common property, part of a Markush grouping: “a resting surface selected from the group consisting of a chair, a bench and a
`stool.” The Markush grouping is more easily explained if the clause including it includes the property that the members of that group
`possess, for example, “a resting surface.” Alternatively, that property may be recited in a preceding claim without the Markush group and
`the specified group may then be recited in a following dependent claim, as “wherein the resting surface is selected. . . .”
`
`In mechanical cases, there would usually be some generic word available, often a “means for” clause, avoiding the need for Markush
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`© 2016 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service
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`Practising Law Institute, Faber on Mechanics of Patent Claim Drafting, 7th Edition, Chapter 6 Composition of Matter
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`claiming and making its use optional. Yet, the Markush claiming is also available. For example, the Markush grouping a “fastener selected
`from the group consisting of nail, rivets and screws” may instead be preceded by the generic claim reciting “a fastener” or a “means for
`fastening.”
`
`A Markush claim in a chemical or biotechnology application may itself include several Markush groups and thus could cover millions of
`compounds. M.P.E.P. section 803.02 concerns restriction requirements for separate species for Markush groups within the single claim
`and permits such requirements when members of a group present independent and distinct inventions. This requirement is despite
`contrary precedent. 21 However, Markush groups require a unity of invention. 22 The precedents just mentioned have held that restriction is
`among
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`claims, not within a single claim. Then the examiner may require provisional election of a single species for initial search and examination.
`As M.P.E.P. section 803.02 states:
`
`Broadly, unity of invention exists where compounds included within a Markush group (1) share a common utility and (2)
`share a substantial structural feature disclosed as being essential to that utility.
`
`If claims to the elected species are allowable, the search and examination of the Markush claim will be extended to the nonelected species
`to the extent necessary to determine patentability of the claim. Claims drawn to species patentably distinct from the elected species are
`held withdrawn from consideration. This arises because some claims with alternatives may cover thousands of alternative embodiments.
`The Patent Office in late 2007 proposed a requirement to limit such a claim to a single invention, when all of the species share a
`substantive feature essential for a common utility or all species are prima facie obvious over each other. This will be similar to PCT
`application guidelines.
`
`The above appears to relate only to claims for two different compounds. When claiming a process or a combination of materials, standard
`Patent and Trademark Office practice is more liberal:
`
`it is sufficient if the members of the group are disclosed in the specification to possess at least one property in common
`which is mainly responsible for their function in the claimed relationship and it is clear from their very nature or from the prior
`art that all of them possess this property. 23
`
`Also, where a Markush expression is applied only to a portion of a chemical compound (for example, Claim 12, a radical such as methyl,
`ethyl, etc.), the propriety of the grouping is determined by consideration of the compound as a whole, and does not depend on there being
`a community of properties in the members of the Markush expression per se. 24
`
`Summary Markush claims define alternative chemical ingredients that can be used in a
`compound, composition, alternative steps in a process, or alternative choices for an article. Where
`claiming alternative compounds, they must not be “patentably distinct” under present Office
`practice; otherwise, they need only have a common property useful in the combination claimed.
`The standard format is “a _____ selected from the group consisting of A, B, and C.” There are
`many detailed rules on Markush practices described in the preceding section, and modern Patent
`and Trademark Office practice may be to restrict use of Markush claims and to require restriction
`between inventions the examiner thinks are independent and distinct.
`
`6.3 Trademarked Materials; Arbitrary Names
`Where an ingredient in a composition to be claimed is known only by a trademark or by an arbitrary name used in trade, according to the
`Patent and Trademark Office, 25 such a name may be used in the application and claims only where the term has a fixed and definite
`meaning, either well known in the literature or defined in the application, if necessary by describing the process of manufacture. Where
`available, a generic name should be used. If the description is not sufficiently definite to enable one skilled in the art to practice the
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`© 2016 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service
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`Practising Law Institute, Faber on Mechanics of Patent Claim Drafting, 7th Edition, Chapter 6 Composition of Matter
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`invention (35 U.S.C. § 112), the claim may be rejected.
`
`A trademark does not identify a particular product, because the product or its characteristic to which the trademark is applied is
`changeable. 26 Thus, claim the product by its relevant generic name or its characteristics as disclosed on the specification or drawings.
`Examiners are instructed to reject a claim under section 112(a) that includes a trademark or a trade name as a limitation to describe a
`material or a product. 27 To avoid a rejection do not use a trademark in a patent application claim. If you want to use a trademark in a
`claim, be sure the precise item or composition, etc., identified by the trademark is described in the specification, so that the scope of the
`claim will remain constant, even if the product or formulation sold under the trademark should change. Preferably, claim the product or
`formulation, rather than claiming the trademark. If a trademark is claimed, use a distinctive typeface, such as all uppercase letters, and if
`accurate, use the trademark registration sign.
`
`A different type of term is a name used in trade. That is a name for a product used in a particular art and is nonproprietary. Names used in
`trade can be used in the claim if they have a sufficiently well known definition in the literature or are accompanied by a precise definition.
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`In a leading article, 28 F. Prince Butler reviewed many prior cases and publications on the subject, and deduced the following general rules
`and summary:
`
`Rule #
`
`Rule #
`
`Rule #
`
`Rule #
`
`1–A Trade Term is properly used in a specification if those skilled in the art can make
`the product designated by the trade term at the time the application is filed, using the
`specification and/or published literature that is implicated by the specification.
`2–A trade term is also properly used in a specification if the product is generally known
`to persons skilled in the art and is readily obtainable at the time the application is filed,
`provided the composition of the product is a trade secret and there is reason to believe
`that whenever the composition of the product is modified the trade term will also be
`changed.
`3–A trade term is also properly used in a specification if it designates a component of
`the embodiment which is not essential to the invention.
`4–A trade term can be used in a claim only if its meaning has been adequately defined
`in the specification, whereby it imparts specific limitations to the claim.
`
`Summary Examiners are instructed to reject such claims. Generally, it is undesirable to use
`trademarks and trade names in patent applications. However, courts have allowed their use under
`a variety of factual circumstances. Because of the divergence of such decisions it is difficult for
`patent attorneys and patent office examiners to appraise whether or not particular trade terms have
`been properly used in patent applications. This note presents four rules which embody all the
`known cases involving the use of trade terms in patent applications.
`
`The proper test should be the rule of reason, derived only from 35 U.S.C. § 112. Has the applicant disclosed everything about the material
`he or she reasonably can? If so, that is enough.
`
`If “Amberlite IRC 50” is a critical material in a process or composition, and if the applicant does not know what it is and the trademark
`owner will not say, why should he be denied a patent, assuming the invention is unobvious, etc.? If, as the board or courts worry, the
`trademark owner goes out of business or so modifies the formula that the invention no longer operates, then the patent would be useless.
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`Validity would not come into question, because no one could practice the invention. However, if, as more normally happens, the trademark
`owner does not go out of business, the patent would then remain operative and useful as long as the material stayed available. A patent
`with an effective life of five years is preferable to no patent at all. Also, since the disclosure of the trademarked material by name is a
`description of an existing thing, it should not be held “new matter” to add a further description of that material if it subsequently becomes
`available at any time before the patent is granted and perhaps even after the grant of the patent. The only thing that should be required is
`an affidavit or statement of identity—that the later description indeed describes the composition mentioned in the application—nothing else.
`The rule against the new matter 29 should really have nothing to do with this mere identification question.
`
`Of course, trademarks should always be properly designated, by capitalizing them in upper case type and placing them between quotation
`marks. 30
`
`Summary Avoid defining compositions used in practicing an invention by trademark or trade
`name so far as possible. Where there is no other way, describe everything known about the
`material in the application. If rejected under 35 U.S.C. § 112, appeal.
`
`6.4 Special Claims For Chemical Cases—Fingerprint Claims
`In chemical composition claims, special forms of claims are sometimes permitted on an emergency basis. One important situation is where
`a new composition has been produced, such as a new or modified form of a material, but where the differences from previous forms
`cannot be explained in terms of physical or chemical structure. In that situation, so-called fingerprint claims are sometimes permitted,
`defining the material in terms of its properties, such as X-ray diffraction patterns, solubility, melting point, etc. 31
`
`One famous example follows, from the Aureomycin patent, Duggar 2,482,055. Claim 1 reads:
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`Substances effective in inhibiting the growth of Gram positive and Gram negative bacteria selected from the group consisting
`of a substance capable of forming salts with acids, containing the elements carbon, hydrogen, nitrogen, chlorine, and
`oxygen, being very soluble in pyridine, soluble in methanol and in acetone and being slightly soluble in ethanol and in water,
`its crystals having a refractive index parallel to elongation between about 1.674 and 1.694, and exhibiting characteristic
`absorption bands in the infra red region of the spectrum when suspended in a hydrocarbon oil in solid form at the following
`frequencies expressed in reciprocal centimeters: 3420, 1643, 1609, 1580, 1523, 1302, 1231, 1209, 1121, 1080, 1050, 969,
`943, 867, 844, 825, 805, 794, 788, 733, 713 and the acid salts of said substance.
`
`This was a new chemical compound, but the inventors did not know what the structure was at the time. They described it as
`to every property known, as well as providing considerable detail in the specification on methods of production with a newly
`discovered strain of bacteria named “Streptomyces aureofaciens,” because it produced the new chemical Aureomycin.
`
`Note that the proper test for this type of claim should be whether it “distinctly claims” the invention under section 112 of the statute. In other
`words, do the listed properties so uniquely identify the novel composition, as do fingerprints, that they (1) distinguish from old compositions
`and (2) cover the new composition with sufficient certainty that potential infringers can tell when they have the patented compound and
`when they do not.
`
`In Benger Laboratories, Ltd. v. R.K. Laros Co. , 32 the court held:
`
`. . . noth