Appeal No. 96-0928
Application 08/310,971
layer 18 may have a water content which is less than the
preferred amount of 61% (see column 3, lines 30-35 of the
Cartmell specification) and as low as 44% based on a set of
weights of constituents selected by the examiner in the weight
ranges disclosed in column 6, lines 30-37, of the Cartmell
specification. Based on this analysis, the examiner considers
the hydrogel with the smaller content of water to be partially
dehydrated.
The problem with the examiner’s position as outlined supra
is that the smaller water content calculated by the examiner for
Cartmell’s composition is not obtained by dehydration, i.e., by
removal of water. As noted in our reversal of the examiner’s
rejection based on this same reference in appellants’ parent
application (see note 2, supra), there is no disclosure in
Cartmell, either express or inherent, that the hydrogel in the
absorbent layer has been dehydrated to any extent by removal of
water.
In his answer (see page 4), the examiner seems to suggest as
an alternative position that the expression “partially
dehydrated” is a process limitation. While the patentability of
product-by-process claims as a general rule rests on the product
and not on the process by which it was formed (see In re Thorpe,
-5-
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