Appeal No. 2004-2208
Application No. 10/158,988
isocyanate prepolymer prepared with zinc octoate catalyst have
substantially the same properties. (Table 1.)
While Seneker’s polyurethane/urea is prepared by a process
that is different from that recited in appealed claim 1, this
does not defeat the examiner’s rejection. When a product
recited in a product-by-process claim reasonably appears to be
the same as or obvious from a product of the prior art, the
burden is on the applicants to show that the prior art product
is in fact different from the claimed product, even though the
products may be made by different processes. In re Thorpe, 777
F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985).
The appellants argue that they have demonstrated that a
catalyst must be used to obtain a polyurethane/urea that does
not degrade under processing conditions. (Appeal brief at 7.)
The appellants further contend (id. at 8):
Appellants have demonstrated in their examples
that use of a catalyst satisfying the criteria
specified in their claims during preparation of the
prepolymer has a significant effect upon the product
properties and in the types and amounts of diol
necessary to produce the polyurethane/urea solution.
For example, in Comparative Example 5 in which no
catalyst was used to prepare the prepolymer, the
rheology of the polymer solution was so sensitive that
with only a small change in the mono-amine chain
extender level, either a spinnable solution or an
unspinnable gel could be obtained. This sensitivity
was not, however, seen with the polymer solution of
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