Appeal No. 96-3404 Application 08/145,775 have been obvious to form the solid concrete tetrahedron disclosed by Waters of “waste concrete which otherwise would have to be dumped or salvaged . . .” in view of the teachings of Viner. The appellant disagrees, vigorously contending that “the essence of Viner teaches away from the using of [waste] concrete to make concrete products before solidifying” (see brief, page 22). We must point out, however, that the use of “waste” unsolidified concrete vis-à-vis “other” unsolidified concrete to form the artificial reef module is a distinction of the process by which the module is made rather than a structural distinction of the artificial reef module itself. Claims 3, 10 and 16, however, are directed to a product (i.e., an artificial reef module), and not to the method of making the product. Thus, notwithstanding the "product-by-process" terminology of utilizing “waste” concrete referenced by the appellant, the determination of patentabili- ty of these claims is based on the product itself. That is, the product defined by claims 3, 10 and 16 is unpatentable if it is the same as or obvious from the product of the prior art, even if the prior product was made by a different 14Page: Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 NextLast modified: November 3, 2007