Appeal No. 96-0359
Serial No. 08/083,866
54-62; column 5, lines 27-33), we are convinced the Bailey patent disclosure is an enabling prior art
reference. A U.S. patent, e.g., Bailey, is presumed valid
(35 U.S.C. § 282), and this presumption of validity applies to the patent's disclosure as well as to each
of its claims. In re Spence, 261 F.2d 244, 246, 120 USPQ 82, 83 (CCPA 1958). Further, in an
obviousness assessment, skill is presumed on the part of the artisan, rather than the lack thereof. In re
Sovish, 769 F.2d 738, 742, 226 USPQ 771, 774 (Fed. Cir. 1985). After reviewing all the evidence
of record on the issue of enablement of the Bailey patent, it is our judgment that appellants have not
provided sufficient evidence to establish that Bailey is a non-enabling disclosure with respect to the
production of HMW and LMW components and blends as described.
We treat product-by-process claim 13 separately. The patentability of a product-by-process
claim is based on the product itself. Where, as here, a product-by-process claim is rejected over a
prior art product that appears to be the same or similar to the claimed product, although produced by a
different process, the burden is on applicants to produce evidence establishing an unobvious difference
between the claimed product and the prior art product. In re Thorpe, 777 F.2d 695, 697, 227 USPQ
964, 966 (Fed. Cir. 1985); In re Marosi, 710 F.2d 799, 803, 218 USPQ 289, 292-93 (Fed. Cir.
1983). Appellants have not proferred the requisite objective evidence to establish that the claimed
process of preparation produces an unobvious difference, e.g. in property, between the claimed
product and ethylene polymer blend product of Bailey.
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