Appeal No. 95-3313
Application 08/134,851
ends as the secondary mixer of the claimed invention by
agitating and then holding product in the tail end of the
agitation zone until sufficient product is present to overflow
the weir” (Ans., p. 4, l. 1-4), does not support the
examiner’s rejection. A finding that “an invention is an
‘improvement’ is not a prerequisite to patentability.” Custom
Accessories, Inc. v. Jeffrey-Allan Industries, Inc., 807 F.2d
955, 960 n. 12, 1 USPQ2d 1196,
1199 n. 12 (Fed. Cir. 1986). We reverse the examiner’s
rejection. However, we do not rest.
Other Issues
The examiner has not considered product-by-process Claim
14 separately from process Claims 9, 11-13, and 15. Rather,
the examiner has adopted the position that the product of
Claim 14, made by the process of Claim 9, is unpatentable only
if Claim 9 is unpatentable. Accordingly, we are constrained
to reverse the examiner’s rejection of Claim 14 under 35
U.S.C. § 103 in view of Whitlock’s teaching because we reverse
the examiner’s rejection of Claims 9, 11-13, and 15 under 35
U.S.C. § 103 in view of Whitlock’s teaching.
However, because the examiner has not considered the
patentability of product-by-process Claim 14 independently of
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