Appeal No. 1998-2129 Page 9
Application No. 08/561,816
nail tabs which would not have been patentably distinct from
the product of claims 1, 10 and 21 of Lassiter (R.E. 35,603)
taken with the teachings of Meeker. A review of each of
claims 1, 10 and 21 of Lassiter (R.E. 35,603) reveals that a
roofing material including a plurality of nail tabs secured
thereto is required in each of those claims. Here, we agree
with the examiner that it would have been prima facie obvious
to one of ordinary skill in the art to form the nail tabs of
claims 1, 10 and 21 of Lassiter (R.E. 35,603) using a
thermoplastic or thermosetting material since such plastic
materials are known to harden and form a secure base for
holding a fastening device as generally suggested by Meeker.
While appealed claims 1-7 describe the product at least
partially in terms of the method by which it is made, we
observe that the finished product not the method of making the
product, is the focus of our inquiry since the patentability
of such claims is determined based on the product itself. See
In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir.
1985) ("If the product in a product-by-process claim is the
same as or obvious from a product of the prior art, the claim
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