Appeal 2007-1490
Application 10/707,484
1 The Applicants do not sufficiently explain why the Examiner’s legal
2 conclusion with respect to claim 11 is erroneous. The Examiner clearly
3 stated that claim 11 is a product by process claim, the patentability of which
4 does not depend on the method of production, citing In re Thorpe, 777 F.2d
5 695, 698 (Fed. Cir. 1985) (FF 5). Applicants provide no meaningful
6 explanation why the Examiner’s conclusion is erroneous (FF 10). Thus, we
7 also sustain the rejection of claim 11 as being anticipated, or alternatively
8 obvious in view of Carroll.
9 Since we have determined that the claims are unpatentable on the
10 basis of Carroll, we need not and will not consider the rejection based on
11 Wandyez. Accordingly, the rejection of claims 11, 12 and 14-21 based on
12 Wandyez is dismissed as moot.
13 E. Decision
14 Upon consideration of the record, and for the reasons given, the
15 Examiner’s rejection of claims 12 and 14-21 under 35 U.S.C. § 102(b) as
16 being anticipated by Carroll is affirmed.
17 The Examiner’s rejection of claim 11 under 35 U.S.C. § 102(b) or
18 alternatively under 35 U.S.C. § 103(a) based on Carroll is affirmed.
19 No time period for taking any subsequent action in connection with
20 this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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