Appeal No. 2001-0777
Application No. 09/652,893 Page 8
Prior to final disposition of this application, the examiner
should determine whether or not any prior art of record,
including prior art discussed at pages 1-3 of appellants’
specification would have rendered any of the product-by process
claims 24-26 unpatentable. 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 is unpatentable even though the prior art
product was made by a different process.”).
CONCLUSION
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