GALIMBERTI et al. V. ASANUMA et al. - Page 13




          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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