Appeal No. 1997-2958 22 Application No. 08/401,719 Furthermore, Komatsubara discloses performing final annealing to insure recrystallized structure during superplastic forming. In other words, Komatsubara teaches a relationship between the final annealing processing conditions and the superplastic forming properties of the product plate. Therefore, a means to achieve the optimal condition, i.e. optimizing the annealing parameters, is taught by Komatsubara. Cf. In re Rijckaert, 9 F.3d 1531, 1533, 28 USPQ2d 1955, 1957 (Fed. Cir. 1993). As discussed above, appellants have not presented the level of evidence necessary to show criticality of the temperature and time ranges. These are the parameters alleged to result in the bending and yield strength properties claimed. The level of evidence is insufficient to rebut the prima facie case for the reasons given with respect to claim 4. Product-by-Process Claim 20 Claim 20, a product claim to the alloy plate, is in product-by-process format. The claim is limited to a plate consisting essentially of the alloying elements, which have already been established as taught by Komatsubara, formed by casting, rolling in which a cold rolling rate at a final stage of the rolling is at least 50%, and final annealing at 70-250�C so that the plate has non-recrystallized crystal structure. "Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as orPage: Previous 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NextLast modified: November 3, 2007