Appeal No. 1997-0844
Application No. 08/269,979
between the process water disclosed by Zibrida and the process
water recited in claim 18 (Answer, page 2).
Appellants argue that the examiner has failed to
recognize that Zibrida uses gypsum pond water as a source
material while the process recited in claim 18 recites a
source material derived from “scrubbing some of said waste
gases and combining the resulting liquid with liquid drainage
from the waste gypsum” (see claim 18; Brief, pages 6-7; Reply
Brief, page 2). Appellants’ argument is not persuasive since
the source material of the process limitation in claim 18 has
not been shown by convincing argument or evidence to yield a
different product. As stated above, it is the product
claimed, and not the process limitations, of a product-by-
process claim which must be compared with the product of the
prior art. The examiner has met his burden of proof by
establishing that the process water produced by Zibrida, at a
near neutral pH and with low amounts of phosphorus and
fluorine, is reasonably identical or only slightly different
than the process water of claim 18. Furthermore, as noted by
the examiner on pages 4-5 of the Answer, Zibrida teaches that
the source material of his process may be any phosphate-
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