Appeal No. 2005-1672
Application No. 09/833,866
founded. Accordingly, we affirm the examiner’s rejections for
essentially the reasons set forth in the Answer and below.
We turn first to the examiner’s rejection of claims
14 through 20 under 35 U.S.C. § 102(a) as anticipated by, or in
the alternative under 35 U.S.C. § 103(a) as unpatentable over,
the disclosure of Roth. We observe that representative claim 14
is written in a product-by-process format. Thus, it is a
product, not a method of its production, which must be analyzed
for patentability. In re Thorpe, 777 F.2d 695, 697, 227 USPQ
964, 966 (Fed. Cir. 1985)(“The patentability of a product does
not depend on its method of production . . . . 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 art product was made by a different process”).
Here, Roth, like the appellant, discloses manipulating the
pH of a meat product (e.g., ground or chopped, mixed or blended
meat product) to kill microbes and improve the color during
storage. See, e.g., column 1, lines 9-27 and column 3, lines 56-
65. To obtain the desire pH, Roth requires that “[t]he pH
increasing gas [be] held at the operating pressure for an
operating period sufficient to allow the pH increasing gas to be
absorbed into the meat product and effect the desired increase in
6
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