Ex parte LASSITER - Page 9




          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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