Does an author’s failure to synthesize a compound invalidate it as prior art?

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Source: FAQ (MPEP-Based) BlueIron Update: 2024-09-29 10 Rules 5 Related FAQs This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice. An author’s failure to synthesize a compound does not automatically invalidate it as prior art. The MPEP 2121.02 clarifies: “The fact that an author of a publication did not attempt to make the compound disclosed, without more, will not overcome a rejection based on that publication.” This means that simply because the author of a prior art reference didn’t actually make the compound doesn’t make the reference inoperable. Other factors, such as the availability of general processes for making the class of compounds, are considered. It’s important to provide additional evidence beyond just the author’s lack of synthesis to challenge the operability of a reference. Related Rules from the Manual of Patent Examining Procedure 10 rules Collapse Same Disclosure Required for All Prior Art Types MPEP 2121 Required Affidavit Showing Publication Did Not Synthesize Compound Is Insufficient MPEP 2121.02 Evidence of Inoperable Compound MPEP 2121.02 Applicant Can Argue Lack of Enablement Without Evidence MPEP 2121 Permitted Evidence of Unsuccessful Attempts to Make Compound Overcomes Rejection MPEP 2121.02 No Discrimination Based on Nationality of Prior Art MPEP 2121 Prior Art Must Enable Invention for Anticipation MPEP 2121 Burden to Rebut Presumed Operability of Anticipating Reference MPEP 2121 Operability Presumption for Anticipatory Prior Art MPEP 2121 Mere Naming of Compound Without Process Not Descriptive MPEP 2121.02 Prohibited Other Related FAQs 5 FAQs Collapse How does the AIA affect the relevant time for determining enabling prior art? What is the significance of &#8220;analogous art&#8221; in determining enablement for chemical compounds? What constitutes enabling prior art for compounds and co...