Appeal No. 2002-2101
Application 09/068,540
The examiner relies upon the following reference as evidence
of unpatentability:
Shiraishi et al. (Shiraishi) 3,877,912 Apr. 15, 1975
Claims 6, 8, and 12 through 14 stand rejected under
35 U.S.C. § 102(b) as being anticipated by Shiraishi.
For the reasons set forth below, we reverse the rejection.
OPINION
On pages 3 through 5 of the answer, the examiner asserts
that because the claims are product-by-process claims, it is the
product itself which must be new and unobvious. In this context,
the examiner states that “claim 8 has only one explicit
structural limitation for the fiber, that is, it retains a
material of the intermediate tube (see the last line of claim
8).” The examiner states that “the claim does not explicitly
require any other material be in the fiber.”
On the other hand, appellants argue that the claims require
that the fiber include a material having certain viscosity
characteristics, and that the examiner has cited no prior art
that teaches this aspect of the invention. (reply brief, pages
3-4).
Hence, the single issue on this appeal is whether the claims
require a material having certain viscosity characteristics. If
so, we agree with appellants that Shiraishi does not disclose
this aspect of the invention. Our determinations are made
below.
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