Appeal No. 1996-0212
Application No. 08/261,759
temperatures, e.g., in excess of 150EC. Appellants explain in
their specification at pages 22-23 that the “reaction
promoter” allows esterification to proceed at greater reaction
rates at higher reaction temperatures, and Polle reports in
his declarations that the degree of esterification of reaction
products formed using the “claimed procedure” was 93 percent
while the Borisov procedure produced a degree of
esterification of 60 percent. Particularly, see page 2 of the
declaration executed by Polle on September 20, 1993.
Notwithstanding the process differences noted above, it
reasonably appears that the fertilizer defined by appealed
product-by-process claim 31 is the same as or only slightly
different from the prior art fertilizer described by Borisov.
In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir.
1985). That appellants’ esterification process proceeds at
faster rates (specification, page 23, lines 1-8) is no
indication that appellants’ fertilizer differs chemically fron
Borisov’s fertilizer which is produced by essentially the same
reaction under essentially the same reaction conditions.
Moreover, although Polle states that the degree of
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