Ex parte PALM et al. - Page 4




          Appeal No. 1997-0844                                                        
          Application No. 08/269,979                                                  

          Fitzgerald, 619 F.2d 67, 70, 205 USPQ 594, 596 (CCPA 1980).                 
          The patentability of the products defined by product-by-                    
          process claims, and not the processes for making them, is what              
          must be gauged in light of the prior art.  In re Wertheim, 541              
          F.2d 257, 271, 191 USPQ 90, 103 (CCPA 1976).  Furthermore, the              
          examiner bears a lesser burden of proof to establish a prima                
          facie case of obviousness for product-by-process claims.  Once              
          a prima facie case of obviousness is established, the burden                
          shifts to appellants to establish by convincing argument or                 
          evidence that the product claimed differs substantially from                
          the product disclosed by the prior art.  In re Fessman, 489                 
          F.2d 742, 744, 180 USPQ 324, 326 (CCPA 1974).                               
               The examiner finds that Zibrida discloses a process for                
          treating phosphate-containing wastewater for removing                       
          impurities therefrom by using a double neutralization process               
          including the conditions set forth in claim 18 (Answer, pages               
          2-3).  The examiner also finds that Zibrida teaches adding                  
          acid to the effluent to adjust the pH to a range of about 6 to              
          about 8.5 if it is desired to discharge the effluent into the               
          environment (Answer, page 3, citing col. 4, ll. 42-46).                     
          Accordingly, the examiner states there is no distinction                    
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