Appeal No. 2002-2298 Page 6
Application No. 09/442,442
In our view, the claims under appeal are not drawn to just any apertured web and
that the claims under appeal are not necessarily anticipated by an apertured web
having only completely formed apertures therein. In that regard, the claims under
appeal are drawn to an apertured web having a reduced number of incompletely
formed apertures relative to an apertured web made using a corresponding apparatus
comprising a support structure and a forming member but without a porous structure in
between. Thus, the claimed apertured web must have a reduced number of
incompletely formed apertures when compared to an apertured web made using a
support structure and a forming member but without a porous structure in between. To
determine if a prior art apertured web anticipates the claimed subject matter, the prior
art apertured web must be compared to see if it has a reduced number of incompletely
formed apertures when compared to an apertured web made using a support structure
and a forming member but without a porous structure in between. Thus, the product-
by-process limitation set forth in the claims does affect the product itself (i.e., the
claimed apertured web) and therefore can impart patentability to the product. See In re
Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (Even though
product-by-process claims are limited by and defined by the process, determination of
patentability is based on the product itself. The patentability of a product does not
depend on its method of production. If the product in the product-by-process claim is
the same as or obvious from a product of the prior art, the claim is unpatentable even
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