Appeal No. 1996-2874
Application No. 08/027,849
than the process by which it is made. For this
reason, even though product-by process claims are
limited by and defined by the process, determination
of patentability is based on the product itself. In
re Brown, 459 F.2d 531, 535, 173 USPQ 685, 688 (CCPA
1972); In re Pilkington, 411 F.2d 1345, 1348, 162
USPQ 145, 147 (CCPA 1969); Buono v. Yankee Maid
Dress Corp., 77 F.2d 274, 279, 26 USPQ 57, 61 (2d
Cir. 1935).
The patentability of a product does not depend
on its method of production. In re Pilkington, 411
F.2d 1345, 1348, 162 USPQ 145, 147 (CCPA 1969). If
the product in a product-by process claim is the
same as or obvious from a product of the prior art,
the claim is unpatentable even though the prior
product was made by a different process. In re
Marosi, 710 F.2d 799, 803 218 USPQ 289, 292, 292-93
(Fed. Cir. 1983); Johnson & Johnson v. W.L. Gore,
436 F.Supp. 704, 726, 195 USPQ 487, 506 (D. Del.
1977); see also In re Fessman, 489 F.2d 742, 180
USPQ 324 (CCPA 1974).
With this guideline in mind, we turn to Fuchs and Archer.
As pointed out by appellant, both Fuchs and Archer disclose an
outer layer of fiber-reinforced reaction resin cured by heat,
rather than light. See, e.g., Brief, pages 6 and 8. However,
it appears that the reaction resin cured by heat is chemically
identical to that cured by light since both heat and light
curing promote crosslinking of the polymers in the reaction
resins involved. See e.g., Brief, page 6 and specification,
6
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