Appeal No. 98-2743 Page 4
Application No. 08/504,100
The examiner's reference to "the starting form of the
nitrile rubber in the process of manufacture lends no
patentable weight to the final inking member produced" is
presumably based upon the fact that a claim to a product
drafted in product-by-process format 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. See,
e.g., In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed.
Cir. 1985). The problem here, however, is that the resulting
product is not the same. As the appellant has argued on page 5
of the brief:
In the prior art processes discussed in the
specification on pages 1 and 2 and Figure 2 [i.e.,
AAPA], organic solvents are used to assist in
masticating and swelling rubber for the incorporation
of sodium nitrate. These organic solvents are
removed before molding and leaching sodium nitrate
from the rubber. Therefore, the organic solvent used
is not present in the molded article such that the
amount used does not significantly affect the
properties of the molded porous articles. In
contrast, peptizers [i.e., the peptizing agents] are
not evaporated before molding a nitrile rubber or
leaching the sodium nitrate therefrom such that the
composition of molded/leached articles obtained from
peptized nitrile rubber is distinct from the
molded/leached articles prepared using a solvent.
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