Appeal No. 95-1872
Application 07/953,340
absorb water (Stangroom: p. 2, lines 39-71; Answer, p. 4).
We do not agree with the examiner that the claims on appeal are product by process claims. In
re Brown, 459 F.2d 531, 535, 173 USPQ 685, 688 (CCPA 1972). We are in agreement with appellant
that the claimed polymeric beads are structurally different from Stangroom’s polymeric particles. While
appellant’s claim 1 does recite that the rheological constituent is entrapped during the polymerization of
each bead, we find that appellant’s claims describe the polymer sponge material in terms of its physical
structure, and not in terms of the process by which it was made, i.e. each polymeric bead comprises a
porous matrix with water trapped within the matrix as opposed to the water being attracted to the surface
of a polymeric particle because of the polymer’s hydrophilic properties. The Stangroom patent discloses
that “it is essential for the production of an electro-viscous effect that the polymer should contain water [an
electro-rheological constituent]” (p. 2, lines 43-46). The patentee accomplishes this result by using a
hydrophilic character of the polymer, i.e the charge on the polymer and the number and strength of acid
groups in the polymer (p. 2, lines 39-42, p. 2, lines 60-110) to attract water as opposed to a polymer
having a network of pores wherein water is entrapped as required by the claims on appeal. On this record,
the examiner has not provided any evidence or scientific reasoning to show that a polymer which absorbs
water because of its hydrophilic property is structurally the same as a polymer having a network of pores
wherein water is entrapped.
It is well settled that anticipation under 35 U.S.C. § 102 is a factual determination. In re Baxter
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