Ziegler, In re, 87-1409

• Decision Date: 29 October 1987
• Docket Number: No. 87-1409,87-1409
• Citation: 833 F.2d 1024
• Parties: Unpublished Disposition NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. In re Karl ZIEGLER, Heinz Martin, Heinz Breil and Erhard Holzkamp.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1024

833 F.2d 1024

Unpublished Disposition

NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

In re Karl ZIEGLER, Heinz Martin, Heinz Breil and Erhard Holzkamp.

No. 87-1409.

United States Court of Appeals, Federal Circuit.

Oct. 29, 1987.

Before RICH, DAVIS and ARCHER, Circuit Judges.

DECISION

DAVIS, Circuit Judge.

We affirm the decision of the United States Patent and Trademark Office Board of Patent Appeals and Interferences (Board), which upheld the examiner's rejection of claim 66, the sole remaining claim in appellants' patent application, Serial No. 514,068, filed June 8, 1955. The board found that claim 66 was anticipated either by U.S. Patent No. 4,376,851 to Hogan et al. or in the alternative by U.S. Patent No. 2,691,647 to Field et al.

OPINION

Claim 66 reads "White, solid, plastic polypropylene characterized by being able to be worked into foils and sheets above about 140?C and formed by the polymerization of propylene, using a catalyst formed from an aluminum alkyl and a titanium halide." Notwithstanding the "product-by-process" language, the claim is directed to a product, not to a method for making the product, and is not patentable if the product exists in the prior art even though the prior product was made by a different method. In re Thorpe, 777 F.2d 695, 697-98, 227 USPQ 964, 965-66 (Fed.Cir.1985). The Board found that the examiner had a reasonable basis for concluding that the solid polypropylenes disclosed in both the Field and Hogan patents were the same or similar to the product claimed by Ziegler. In that connection, the Board's opinion pointed out the various specific respects in which appellants' product is identical with or closely similar to the products of Hogan and Field.

There is also no doubt that Field and Hogan are proper references. The Field patent is prior art under 35 U.S.C. Sec. 102(e) (1982) in view of its filing date of December 6, 1952. The Hogan patent is entitled under 35 U.S.C. Sec. 120 to the January 27, 1953 filing date of its parent application since the parent application disclosed the invention in the manner required by the first paragraph of 35 U.S.C. Sec. 112, and the...