Appeal No. 2005-0620
Application 10/010,202
The appellants argue that Thorpe is inapplicable because the
appellants have argued that the appellants’ product and that of
Franke are different (reply brief, page 2). As pointed out
above, evidence that the products are different is required, and
the appellants have not provided such evidence.
The appellants argue that their specification provides
evidence of an unobvious difference between the claimed product
and prior art products (reply brief, page 3). The specification
incorporates Franke by reference and states that Franke provides
further details of the various materials that can be used in
making the appellants’ product (page 17, line 28 - page 18,
line 3), but the specification does not provide evidence that the
appellants’ claimed product differs from that of Franke.
The appellants quote (brief, page 10) the Federal Circuit as
stating in Atlantic Thermoplastics Co. v. Faytex Corp., 970 F.2d
834, 845, 23 USPQ2d 1481, 1490 (Fed. Cir. 1992), that
the rule is well established that where one has
produced an article in which invention rests over prior
art articles, and where it is not possible to define
the characteristics which make it inventive except by
referring to the process by which the article is made,
he is permitted to so claim his article, but is limited
in his protection to articles produced by his method
referred to in the claims.
6
Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: November 3, 2007