Appeal No. 95-2035
Serial No. 08/083,864
Thus, it is the examiner's position that Bailey's preferred blend is identical or substantially identical with
the claimed blend. In the alternative, the examiner argues
Assuming arguendo that Bailey's preferred composition does not satisfy the
high molecular weight polymer FR [flow ratio] or the blend MFR [melt flow ratio], it
would have been obvious to arrive at the claimed subject matter because it appears that
Bailey's Table I generically teaches compositions satisfying the claimed values and the
person of ordinary skill in the art would have expected successful results for all
embodiments falling within Bailey's generic disclosure. (Answer page 5, paragraph
two)
The law of anticipation does not require that the reference teach what the appellants are
claiming, but only that the claims on appeal "read on" something disclosed in the reference. Kalman v.
Kimberly-Clark Corp., 713 F.2d 760, 772, 218 USPQ 781, 789 (Fed. Cir. 1983), cert. denied,
465 U.S. 1026 (1984). We find the examiner had a reasonable basis for believing the claimed
invention "reads on" the preferred ethylene blend, the preferred HMW component and the preferred
LMW component of Bailey. Where, as here, the claimed and prior art products reasonably appear to
be substantially the same, the burden is shifted to appellants to prove the product of the prior art does
not necessarily posses characteristics altributed to the claimed product. In re Spada, 911 F.2d 705,
708, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990); In re Best, 562 F.2d 1252, 1255, 195 USPQ 430,
433-34 (CCPA 1977). In our view, appellants have not met their burden.
Appellants argue the polydispersity indices of claims 5, 6 and 12 are excluded by Bailey's
disclosed blend polydispersity of generally greater than 18 and preferably 20-35, especially since
"about" does not modify the upper end of the polydispersity ranges as recited in claims 5 and 6 (Brief
Page 7
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: November 3, 2007