Appeal No. 2000-0920
Application No. 08/829,034
The rejection under 35 U.S.C. § 102(b), or in the alternative,
under 35 U.S.C. § 103, based on Holt.
Claim 1 is directed to a cermet comprising “a ceramic powder
presintered into a porous ceramic matrix and infiltrated with a
molten metal or metal alloy.” The recitation that the porous
ceramic matrix is formed by presintering a ceramic powder is a
product-by-process limitation.
In assessing the process language of product claims during
ex parte appeal, we take into account as limitations of the
claimed subject matter, features imparted to the product by the
process, and not the steps of the process itself; in other words,
the determination of patentability is based upon the product
itself, even though the claim may by defined by the process.
Thus, the product in such a claim 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 process. See Atlantic
Thermoplastics Co. v. Faytex Corp., 970 F.2d 834, 845-46,
23 USPQ2d 1481, 1490-91 (Fed. Cir. 1992) and In re Thorpe, 777
F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985).
Holt discloses a cermet made by a process that comprises
reacting an aluminum powder compact in a high pressure nitrogen
atmosphere utilizing a self-propagating high temperature
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