Appeal No. 2000-1213
Application No. 08/566,006
Claims 8 through 19 stand rejected under 35 U.S.C. § 103 as
unpatentable over any of McGrath, Bergeson, Nelson, Szczech,
Walter, Martin and Coderre.
We have carefully reviewed the claims, specification, and
applied prior art, including all of the arguments advanced by both
the examiner and appellant in support of their positions.
This review leads us to conclude that the examiner’s § 103
rejection is well founded. Accordingly, we will sustain the
examiner’s § 103 rejection for the factual findings and conclusions
set forth in the Answer and below.
The claimed subject matter is directed to a cellular flexible
retroreflective sheeting. See claim 8. This cellular flexible
retroreflective sheeting is further limited by a process limitation
“ultrasonically fusing”. Id.
The court provides guidance for analyzing the patentability of
product-by-process claims in In re Thorpe, 777 F.2d 695, 697, 227
USPQ 964, 965-66 (Fed. Cir. 1985) as follows:
Product-by-process claims are not specifically
discussed in the patent statute. The practice and
governing law have developed in response to the need to
enable an applicant to claim an otherwise patentable
product that resists definition by other than the process
by which it is made. For this reason, even though
product-by-process claims are limited by and defined by
the process, determination of patentability is based on
the product itself. In re Brown, 459 F.2d 531, 535, 173
3
Page: Previous 1 2 3 4 5 6 7 8 9 10 Next
Last modified: November 3, 2007