Appeal No. 96-0928
Application 08/310,971
777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985)), it is
well established patent law that process limitations in product-
by-process claims must be given the same consideration as
traditional product characteristics to the extent that they
physically or structurally distinguish the product over the prior
art (see In re Hallman, 655 F.2d 212, 215, 210 USPQ 609, 611
(CCPA 1981)).
In the present case, it is expected that the removal of
water to partially dehydrate appellants’ hydrogel will leave void
spaces once occupied by the water prior to evaporation. There is
no evidence before us to establish that Cartmell’s undehydrated
hydrogel has any corresponding void spaces. Furthermore, the
Perrault patent recognizes that dehydration causes a change in
the pH value of hydrogels. As a result, the physical
characteristics of appellants’ partially dehydrated hydrogel
differ from Cartmell’s undehydrated hydrogel. The examiner has
not made any finding to the contrary. Therefore, even if it is
assumed arguendo that the expression “partially dehydrated” is a
process limitation, it nevertheless must be given weight in
determining the patentability of the claimed subject matter over
Cartmell. Id.
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