Appeal No. 1998-0091
Application No. 08/404,054
claim 3 in at least the following respect: claim 5 does not
require that the substrate be made of ceramic material.3
3Claim 3 specifies that the "spacer [is] formed
from the original glass frit" (emphasis added), an apparent
reference to the previous recitation of "a glass layer formed
from an original glass frit disposed on the first metallic
electrode." This requirement that the spacer and the glass
layer be formed from the same original glass frit, a process
limitation in an apparatus claim, is entitled to no weight
because the product will be the same whether the spacer and
the glass layer are formed from the same glass frit or from
different glass frits. See In re Thorpe, 777 F.2d 695, 697,
227 USPQ 964, 966 (Fed. Cir. 1985):
The patentability of a product does
not depend on its method of
production. In re Pilkington,
411 F.2d 1345, 1348, 162 USPQ 145, 147
(CCPA 1969). If the product in a
product-by-process claim is the same
as or obvious from a product of the
prior art, the claim is unpatentable
even though the prior product was made
by a different process. In re Marosi,
710 F.2d 799, 803, 218 USPQ 289,
292-93 (Fed. Cir. 1983); Johnson &
Johnson v. W.L. Gore, 436 F.Supp. 704,
726, 195 USPQ 487, 506 (D. Del. 1977);
see also In re Fessman, 489 F.2d 742,
180 USPQ 324 (CCPA 1974).
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