Appeal No. 1997-0092
Application No. 08/215,015
view of the applied prior art. Accordingly, we will sustain
the examiner's rejection for essentially those reasons
expressed in the Answer, and we add the following primarily
for emphasis.
The claimed subject matter before us is directed to
product-by-process claims. Even though the product-by-process
claims are limited by and defined by the process,
determination of patentability is based on the product itself.
The patentability of the product does not depend on its method
of production. Claim 11 is a product-by-process claim wherein
the determination of patentability is based on the product
itself. See In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964,
966 (Fed. Cir. 1985).
The claimed subject matter is directed to a low-alcohol
wine having full body, aroma and character of traditional
wine. Lang is likewise directed to a low-alcohol, wine
prepared from a low sugar fraction typically containing from 5
to 15% by weight of sugar. See Lang, column 3, lines 31-32.
Lang thereafter adds high boiling esters to the low sugar
fraction, which components add wine flavors characteristic of
the fruit and of the particular variety of the fruit from
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