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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