Appeal No. 96-3404
Application 08/145,775
have been obvious to form the solid concrete tetrahedron
disclosed by Waters of “waste concrete which otherwise would
have to be dumped or salvaged . . .” in view of the teachings
of Viner. The appellant disagrees, vigorously contending that
“the essence of Viner teaches away from the using of [waste]
concrete to make concrete products before solidifying” (see
brief, page 22). We must point out, however, that the use of
“waste” unsolidified concrete vis-à-vis “other” unsolidified
concrete to form the artificial reef module is a distinction
of the process by which the module is made rather than a
structural distinction of the artificial reef module itself.
Claims 3, 10 and 16, however, are directed to a product (i.e.,
an artificial reef module), and not to the method of making
the product. Thus, notwithstanding the "product-by-process"
terminology of utilizing “waste” concrete
referenced by the appellant, the determination of patentabili-
ty of these claims is based on the product itself. That is,
the product defined by claims 3, 10 and 16 is unpatentable if
it is the same as or obvious from the product of the prior
art, even if the prior product was made by a different
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