Appeal No. 2003-0697
Application 09/750,088
as airborne liquids and solids carried thereby are caused to be
disinfected, filtered, purified and/or sterilized. In these
respects, see Condit’s teachings at, for example, lines 13-33 in
column 1, the paragraph bridging columns 1 and 2, the paragraph
bridging columns 2 and 3, as well as lines 37-48 in column 4.
Under the circumstances recounted above, the here-
claimed products of air or a combination of air, liquids and
solids appear to be indistinguishable from the corresponding
products yielded by the process and apparatus of Condit. It is
appropriate to here emphasize that, even though the appealed
claims are product-by-process claims (i.e., the claims define the
aforementioned products via the process by which they are made),
the determination of patentability is based on the product
itself. In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed.
Cir. 1985). That is, 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 product was made
by a different process. Id. Here, the process by which the
appellant’s claimed products are made appears to be the same as
the process by which Condit’s air and other products are made.
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