Appeal No. 97-2966
Application 08/393,858
unpatentable over the admitted prior art in view of Kramer.
The admitted prior art states that “[i]n the past” tubing
having axially spaced corrugated length portions has been made
by using plural forming devices at axially spaced length
portions of the uncured rubber sleeve. Thus, according to the
admitted prior art, a length of rubber tubing with axially
spaced circumferentially corrugated segments is known in the
art (albeit formed by a different process). To the extent
that the tubing of the admitted prior art might not have a
“uniform wall thickness,” Kramer’s teaching of a “uniformity
in a wall thickness” (column 1, lines 18 and 19) would have
fairly suggested such an arrangement, particularly where
economical manufacture is of concern (see column 1, line 17).
Although the tubing of the admitted prior art is formed by a
different process, we must point out that the determination of
patentability in a product-by-process claim is based on the
product itself, even though the claim may be limited and
defined by the process. That is, the product in such a claim
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 process. In re Thorpe, 777 F.2d 695, 697, 227
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