Appeal No. 2005-0620
Application 10/010,202
type of material applied by an ink jet printer.2 Because, in
forming his white pigmented elastomer layer, Franke applies the
types of materials applied using the appellants’ digitally
controlled color printer, it reasonably appears that Franke’s
white colored layer is the same or substantially the same as that
recited in the appellants’ product-by-process claim 1. Moreover,
the disclosure in the appellants’ specification that “[f]urther
details of the various types of materials that may be employed
are described in International Publication No. WO 97/21867,
published June 19, 1997 [which is the Franke reference], the
relevant portions thereof being hereby incorporated into the
present application” (page 17, line 27 - page 18, line 3),
indicates that the materials used by the appellants are the same
as those used by Franke.
The appellants argue that “[s]ince product-by-process claims
are limited by and defined by the process, it therefore logically
follows that Franke may not properly be cited as a 35 USC §102
reference against Applicants’ claims, if the claims presently
before the Examiner disclose a process limitation not disclosed
2 See 20 Kirk-Othmer Encyclopedia of Chemical Technology
155-56 (John Wiley & Sons, 3rd ed. 1982), a copy of which is
provided to the appellants with this decision.
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