Appeal 2007-4101
Application 09/962,972
Thus, it is incumbent upon the Appellants to demonstrate that the
claimed pellets prepared from an aqueous suspension are patentably
different from those taught or suggested by Klabunde. On this record, we
find that the Appellants have not demonstrated that the pellets encompassed
by the claims on appeal do not include those taught or suggested by
Klabunde.
The Appellants contend that Klabunde does not teach preparing its
pellets without a compacting step (Br. 11-12). This contention is
unconvincing.
In the first place, as indicated in Thorpe, 777 F.2d at 697, 227 USPQ
at 966, “[t]he 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.” In the second
place, the terms “comprises” and “comprising” recited in claims 1 and 27,
respectively do not preclude mechanically shaping (e.g., pressing or
compacting) of wet powder from an aqueous suspension. In re Baxter,
656 F.2d 679, 686, 210 USPQ 795, 802 (CCPA 1981). In the third place, as
correctly found by the Examiner (Answer 8), Klabunde teaches that “other
agglomerating techniques (e.g.[,] spraying, adhering, centrifugation, etc.)
may be utilized to form the sorbent pellets (see col. 2, lines 44-45).”
The Appellants appear to contend that Klabunde does not teach or
suggest using its pellets in the liquid environment (Br. 12). Contrary to the
Appellants’ argument, Klabunde clearly teaches that its pellets are useful in
either gaseous or liquid environment (col. 3, l. 23).
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