Appeal No. 1999-1489
Application No. 08/691,193
the hole. The only limitation of claim 11 not expressly
disclosed by Kosik is that the stud is “friction welded” to the
exterior of the driveshaft; rather, Kosik discloses that the
stud (pin) is welded to the exterior of the shaft by “fusion
welding” (page 4, line 8), an especially suitable welding method
being “the MIG [gas shielded arc] welding method” (page 3, lines
6 and 7).
From the argument on page 7 of the brief, appellant seems
to be of the opinion that Kosik’s non-disclosure of friction
welding is dispositive of the § 102(b) rejection. However,
implicit in the examiner’s rejection of claim 11 is a finding
that, notwithstanding the fact that Kosik does not disclose
friction welding, the structure defined by claim 11 would not
differ from that disclosed by Kosik. Since claim 11 is not
drawn to a process which includes friction welding, but rather
to the product of such a process, the claim is anticipated if
the product defined therein is the same as the prior art
product, even though made by a different process. In re Thorpe,
777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985). Since
the Kosik apparatus is similar to that recited in claim 11 in
that stud 5 is welded to the exterior of driveshaft 1, a prima
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