Appeal No. 2006-1120
Application No. 10/429,429
OPINION
For the reasons which follow, we will sustain this
rejection.
Claim 13 is directed to a product which is defined, in part,
as having been made from the flame retardant composition of
claim 1. Viewed in this context, claim 13 is at least analogous
to a product-by-process claim. It is our view, therefore, that
the patentability of claim 13, as with a product-by-process
claim, is determined based on the product itself. See Scripps
Clinic & Research Foundation v. Genentech, Inc. 927 F.2d 1565,
1583, 18 USPQ2d 1001, 1016 (Fec. Cir. 1991) and In re Thorpe,
777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985).
In their Brief and Reply Brief, the appellants do not even
present argument, much less evidence, that their claimed flexible
foamed article differs (i.e., in terms of the product itself)
from the flexible foamed articles taught by Eling. On the other
hand, the record before us reflects that these respective
articles are indistinguishable. That is, the articles of both
appellants and Eling constitute flexible polyurethane foam which
contains fire retardants of the type under consideration (e.g.,
see Eling at lines 13-21 on page 5, line 6 on page 20 through
line 20 on page 22, the disclosure regarding Examples 1-7 on
-3-
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