Appeal No. 1997-0538
Application No. 08/262,168
Brown, 459 F.2d 531, 535, 173 USPQ 685, 688 (CCPA 1972). The
patentability of a product recited in product-by-process
claims is based on the product itself. In re Thorp, 777 F.2d
695, 697, 227 USPQ 964, 965-66 (Fed. Cir. 1985); Brown, 459
F.2d at 535, 173 USPQ at 688. When a claimed product appears
to be identical to or slightly different from a prior art
product, the claimed product may be unpatentable even though
the claimed product is made from a different process. See
Thorp, 777 F.2d at 797, 227 USPQ at 966; In re Marosi, 710
F.2d 799, 803, 218 USPQ 289, 2920-93 (Fed. Cir. 1983).
Here, the examiner finds, and appellants do not dispute,
that Kim and Larsen teach “a gamma titanium aluminide article
with at least 10 % gamma phase...” Compare Answer, page 3,
with Brief and Reply Brief in their entirety. We also find
that both Kim and Larsen describe a gamma titanium aluminide
in the form of a duplex microstructure comprising
predominantly gamma phase grains and lamellar colonies.
Compare Kim, column 2, lines 4-30, and Larsen, column 3, line
67 to column 4, line 2, with appellants’ Reply Brief, page 4
and specification, page 5, line 27 to page 6, line 5.
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