Appeal 2007-1675
Application 10/158,708
Claim 1 describes the claimed fixture in terms of its manufacture.
Specifically, claim 1 requires that the shell and the cap are both
thermoformed from an extruded, calendered or cast polymeric sheet. The
cap will substantially conform to the shape and size of the shell so that a
substantial portion of the shell is nestable inside a substantial portion of the
cap. The intermediate layer bonds the shell, cap and intermediate layer into
an integral structure conforming to the desired configuration of the fixture
when the cap is inverted and pressed into seated, contacting engagement
with the intermediate layer and cured.
We agree with the Examiner that the phrase “thermoformed from an
extruded, calendered or cast polymeric sheet” is a process limitation relating
to the manner in which the shell and cap are made (Answer 3). Therefore, if
the product, a polymeric plumbing fixture, in this 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 product was made by a different process.
In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985). We
find, however, that the phrase “thermoformed from an extruded, calendered
or cast polymeric sheet” limits the structure of Appellant’s claimed fixture,
more specifically the cap and shell, by requiring that the fixture is composed
of a material that can be thermoformed.
The Examiner finds that Schulz teaches an integrated sink that
comprises three elements: (1) a polymeric shell, having a predetermined
shape, size and underside; (2) a polymeric cap; and (3) an intermediate layer
(Answer 3). The Examiner finds that Schulz teaches that the cap and shell
are both molded from an acrylic polymer (id.). According to the Examiner,
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Last modified: September 9, 2013