Appeal No. 1997-1604
Application No. 08/273,688
composition. While Scanley removes hydrophobic liquid from a
starting composition via physical separation steps such as
centrifugation and filtration, the resulting product is
essentially a cake of polymer particles (e.g., see lines 15-57
in column 8 and example I in column 10). Such a cake cannot
be regarded as the here claimed pourable concentrated
polymer/emulsifying surfactant/
hydrophobic liquid composition. As a consequence, the step of
Scanley’s method in which hydrophobic liquid is removed, for
example, via a centrifuge does not produce a pourable
concentrated composition as required by the method claims
under review.
The Section 102 and Section 103 rejections over Scanley
of composition claims 12 through 14 and 18 stand under
different footing. This is because, although these claims
contain process recitation, the determination of claim
patentability depends upon the composition itself. In re
Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985).
With the foregoing in mind, we point out that Scanley’s
aforementioned cake of polymer particles is redispersed in a
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