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 -13-Page: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 NextLast modified: November 3, 2007