Appeal No. 1998-0873
Application 08/301,279
In re Gordon, 733 F.2d 900, 902, 221 USPQ 1125, 1127 (Fed.
Cir. 1984). Accordingly, we conclude that the Examiner has
failed to establish a prima facie case of obviousness as to
independent claims 7 and 10. The rejection of claims 7-13
is reversed.
New ground of rejection under 37 CFR § 1.196(b)
Claims 7, 10, and 11 are rejected under 35 U.S.C. § 102
as anticipated by Appellant's admitted prior art (APA) which
states (specification, p. 3):
Another [prior art] method [for making serpentine
fluorescent tubes] has been to bend uncoated tubes into
a "U" shape and then apply the phosphors via the
typical phosphor slurry flush coat method used for
linear tubes. Success has been claimed for uniform
application of phosphors to "U" shapes using the flush
coat method, but "S" shaped or "M" shaped tubes have
not been uniformly phosphor coated with the typical
slurry deposition method.
The claims are in product-by-process format because
they define the phosphor layer in a miniature fluorescent
tube (claim 7) or lamp (claim 10) by the process of how the
phosphor layer is applied. Product-by-process claims are
treated differently for patentability purposes during
ex parte examination in the USPTO than for infringement and
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