Appeal No. 2005-0704
Application No. 09/812,293
For each of the examiner’s three rejections, appellant
submits that the claims stand or fall together with independent
claim 21 (see page 5 of principal brief).
We have thoroughly reviewed each of appellant’s arguments
for patentability. However, we find the examiner’s rejections
well-founded and supported by the prior art evidence relied upon.
Accordingly, we will sustain the examiner’s rejections for
essentially those reasons expressed in the answer, and we add the
following primarily for emphasis.
We consider first the examiner’s rejection of the appealed
claims under § 102 over JP ‘104. Since claim 21 is drafted in
product-by-process format, certain principles of patent
jurisprudence apply. If a product defined by a product-by-
process claim reasonably appears to be substantially the same as
or obvious from the prior art, the claim is unpatentable even
though the prior product was made by a different process. In re
Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985).
In the present case, although the body ply comprising a plurality
of rows of reinforcement cords of JP ‘104 is made by laminating
two elastomeric sheets together, as opposed to the recited
extrusion process, we agree with the examiner that the resulting
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