Interference No. 103,303
et al.'s copolymer would have been anticipated or rendered
obvious by the copolymer of Asanuma et al. Both copolymers
contain identical components (monomers) in overlapping ranges.
It is settled that where the prior art describes a composition
which reasonably appears to be identical or substantially the
same as the claimed composition, the subject matter claimed is
prima facie unpatentable under 35 U.S.C. §§ 102 and/or 103.
In re Best,
562 F.2d 1252, 1255, 195 USPQ 430, 433-34 (CCPA 1977); In re
Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir.
1985)(The patentability of a product does not depend upon its
method of manufacture and 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). In re Spada, 911
F.2d 705, 708, 15 USPQ2d 1655, 1657 (Fed. Cir. 1990)("The
discovery of a new property or use of a previously known
composition, even when that property and use are unobvious
from the prior art, cannot impart patentability to claims to
the known composition.")
The burden is upon the party Galimberti et al. to
demonstrate that the copolymers of its claim 1 are not only
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