Appeal No. 2006-2710
Application No. 10/458,114
and, in addition, alkylates the dendrimers while bound to the solid
substrate.” (Br. 4.) Appellants argue that the “Neumann process leads to
materials that are randomly structured, are unstable, and [are] difficult to
manufacture.” (Id.)
Contrary to the arguments raised by Appellants, Neumann describes
coupling a finished dendrimer to the stationary phase. (Neumann 4.) In
addition, although “Neumann states that “a silica gel functionalized with
-NH2 is particularly suitable for the use of poly(melamine)dendrimers” (id.),
Neumann does not require that the stationary phase be treated with an amino
compound, or even that a triazine be used to bind the dendrimer to the
stationary phase. More importantly, Appellants have not demonstrated that
the processes described in Neumann, modified to attach the dendrimer using
an organosilane, would not result in the product recited in claim 1. The
“patentability of a claim to a product does not rest merely on a difference in
the method by which that product is made. Rather, it is the product itself
which must be new and unobvious.” In re Pilkington, 411 F.2d 1345, 1348,
162 USPQ 145, 147 (CCPA 1969) (emphasis in original).
Appellants also argue that “the materials of the instant invention are
alkylated dendritic materials while the materials of Neumann are not. Still
further, to arrive at the alkylated materials of this invention one has to treat
the bound dendritic materials with yet another step, which is not found in,
nor suggested by Neumann, that is, a step for alkylation of the dendritic
materials.” (Br. 4.) However, for the reasons discussed above, we conclude
that the Examiner has set forth a prima facie case that Neumann describes
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