Appeal No. 1998-0787
Application No. 08/491,769
between the recited process for making a fat continuous spread
and the prior art method of preparing such spread is that
appellants' method employs recirculation of the beta prime
crystals back into the partially crystallized alpha phase
whereas the prior art method does not utilize such a
recirculating step.
Since appealed claim 14 is drafted in product-by-process
format, certain principles of patent jurisprudence apply. It
is well settled that the determination of patentability for a
product-by-process claim is based upon the product itself,
i.e., the patentability of the claimed product does not depend
on its method of production. In re Thorpe, 777 F.2d 695, 697,
227 USPQ 964, 966 (Fed. Cir. 1985); In re Brown, 459 F.2d 531,
535,
173 USPQ 685, 688 (CCPA 1972); In re Pilkington, 411 F.2d
1345,
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