Appeal 2007-4101
Application 09/962,972
relied on the combined disclosure of Klabunde and Price. The Appellants
have not challenged the Examiner’s finding at page 3 of the Answer that:
Klabunde discloses a unit suitable for the flow through of a gas
or liquid (see col. 3, lines 19-25), which unit is at least partially
filled with particles prepared from iron oxide (see col. 2, lines
23-24), which particles have the recited size (col. 2, line 30) and
BET surface area (see col. 6, line 6)… Accordingly, this
primary reference discloses the claimed invention with the
exception of the recited cartridge housing. Price discloses a
fluid purifying device comprising a cartridge housing of the
type recited.
Nor have the Appellants challenged the Examiner’s determination at pages 3
and 4 of the Answer that:
It would have been obvious to one of ordinary skill in the art
at the time the invention was made to provide the fluid
treatment system of Klabunde with the cartridge housing of
Price, in order to facilitate handling of the treatment
material in this primary reference system.
Rather, the Appellants contend that Klabunde does not teach employing
pellets prepared from an aqueous suspension (Br. 10-11). In so arguing, the
Appellants fail to recognize that the claims on appeal are directed to a
cartridge housing containing an adsorbent/catalyst pellet, not a process for
making the same. 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 product was made by a different process.”).
As stated in In re Brown, 459 F.2d 531, 535, 173 USPQ 685, 688
(CCPA 1972):
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