Appeal No. 1997-3524 Page 10
Application No. 08/336,402
passages formed therein. See pages 4 and 5 of the answer. We
note that Pall discloses that a particulate material is deposited
into the pores of a porus material so that the pore diameter of
the pores is reduced or restricted to a pore diameter of less
than 25 microns over a portion of the length of the pores. See
page 3, lines 11 through page 5, line 11 and Examples 1-3 of
Pall.
Appellants maintain (brief, page 15) that claim 1
distinguishes over Pall (Au ‘864) since
this claim defines that the restricted passages of the
porous member are formed through heat treatment of fine
particles impregnated in the outer surface portion of a
porous body, whereas the micropores in the porous
members of Au ‘864 are formed through pressurization
treatment of a non-woven fibrous bat of material (or
the like) using a slurry of particles.
As appellants acknowledge in their argument, claim 1 defines
the claimed product article at least in part by the method of
preparing the product. Since appellants’ claim 1 and the claims
which depend therefrom are in product-by-process form, the
patentability of those claims is determined based on the product
itself, not on the method of making it. See In re Thorpe, 777
F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985) (“If the
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