Ex Parte Schlegel et al - Page 6

                Appeal 2007-4101                                                                               
                Application 09/962,972                                                                         
                relied on the combined disclosure of Klabunde and Price.  The Appellants                       
                have not challenged the Examiner’s finding at page 3 of the Answer that:                       

                      Klabunde discloses a unit suitable for the flow through of a gas                         
                      or liquid (see col. 3, lines 19-25), which unit is at least partially                    
                      filled with particles prepared from iron oxide (see col. 2, lines                        
                      23-24), which particles have the recited size (col. 2, line 30) and                      
                      BET surface area (see col. 6, line 6)… Accordingly, this                                 
                      primary reference discloses the claimed invention with the                               
                      exception of the recited cartridge housing. Price discloses a                            
                      fluid purifying device comprising a cartridge housing of the                             
                      type recited.                                                                            
                Nor have the Appellants challenged the Examiner’s determination at pages 3                     
                and 4 of the Answer that:                                                                      

                      It would have been obvious to one of ordinary skill in the art                           
                      at the time the invention was made to provide the fluid                                  
                      treatment system of Klabunde with the cartridge housing of                               
                      Price, in order to facilitate handling of the treatment                                  
                      material in this primary reference system.                                               
                Rather, the Appellants contend that Klabunde does not teach employing                          
                pellets prepared from an aqueous suspension (Br. 10-11).  In so arguing, the                   
                Appellants fail to recognize that the claims on appeal are directed to a                       
                cartridge housing containing an adsorbent/catalyst pellet, not a process for                   
                making the same.  In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966                           
                (Fed. Cir. 1985) (“The patentability of a product does not depend on its                       
                method of production….  If the product in a product-by-process claim is the                    
                same as or obvious from a product of the prior art the claim is unpatentable                   
                even though the prior product was made by a different process.”).                              
                      As stated in In re Brown, 459 F.2d 531, 535, 173 USPQ 685, 688                           
                (CCPA 1972):                                                                                   
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