Appeal No. 94-3726
Application 07/978,531
Both O’Connor and Anderson qualify as prior art under §
102(e) since they are patents granted on an application for
patent “by another” filed in the U.S. before the invention
thereof by the applicant (see 35 U.S.C. § 102(e) (1975).3
Claim 11 is rejected under 35 U.S.C. § 102(e) as
anticipated by O’Connor or Anderson. As previously discussed,
claim 11 is in product-by-process form. Therefore, we look to
the prior art for the disclosure of a product that reasonably
appears to be identical to the product claimed, i.e., a
dispersion of biocide particles and carrier in a heat swollen
polymer with a viscosity of between about 2,000 and about
30,000 centipoise (see claim 1). See In re Fitzgerald, 619
F.2d at 70, 205 USPQ at 596.
O’Connor discloses two embodiments for preparing a
storage stable dispersion, with the second embodiment
comprising the step of heating a mixture of (a) a dispersion
of a solid biocide in a plasticizer and (b) a plastisol
containing a carrier selected from the group consisting of
3 Note that appellants' U.S. filing date is Nov. 19, 1992,
while the filing date of O'Connor is May 8, 1992, and the
filing date of Anderson is at least Aug. 19, 1991.
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