Appeal No. 95-2011
Application No. 07/959,011
the epoxy resin to produce a crosslinked polymer product.
According to claim 1, the monomers in both the core and shell
do not contain amino functional groups.
Ting discloses a two-stage process for producing graft
polymers using the same or similar reactants as recited in
claim 1. The examiner correctly points out that claim 1 is a
product-by-process claim (Answer, p. 5). Manifestly, the
patentability of a product in a product-by-process claim does
not depend on its method of production, but rather
patentability is based on the product itself. In re Thorpe,
777 F.2d 695, 697-98, 227 USPQ 964, 966 (Fed. Cir. 1985).
Appellants point out (Brief, p. 3):
It must be noted that while the claims are described
in product by process form, they are defined by
several structural features which distinguish them
from Ting. First, the product claimed is directed
to a core-shell polymer where the epoxy is present
in the core which is encapsulated by the shell
(i.e., shell formed on the core). [Emphasis in
original.]
However, according to the examiner (Answer, p. 6):
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