Appeal No. 96-0359
Serial No. 08/083,866
Appellants argue Bailey does not provide melt flow ratio (MFR) data and the examiner's use of
calculations "based on relationships described in applicants' specification" is hindsight (Reply Brief
pages 5-6 and 18). However, "melt flow ratio" appears to be a recognized term of art. Secondly,8
appellants have not offered any objective evidence to establish that Bailey's polymers do not necessarily
possess the claimed melt flow ratios. The Tong affidavit, executed April 5, 1993 for copending
application '864 and made of record in this application, acknowledges that polydispersity index and
melt flow ratio both provide information on molecular weight distribution, although they can have
different biases (page 2). However, since the blends of Bailey would appear to have the same or
similar polydispersity index and melt flow ratio properties to that claimed, they would also appear to
have the same or similar molecular weight distribution. The Tong affidavit does not directly compare
the claimed blend and Bailey's blend to establish Bailey's blend lacks the claimed melt flow ratio.
Although appellants rely on "calculated" comparisons, appellants have not provided any reasoning to
show that one of ordinary skill in the art would have reasonably expected Bailey's regression model
equations to be equally applicable to the experimental data in the specification. There is no showing
that the specification's experimental data was obtained under identical experimental conditions to Bailey
or, if not, what the effects of any differences might reasonably be expected to be. The argument that
8 For example, Lee states melt flow ratio is the ratio of flow index to melt index, where flow index is
determined under ASTM D-1238 and is measured at 10 times the weight used in determining the melt index (column
5, lines 14-20). Bailey also uses ASTM-1238 to determine melt index at a weight or "load" of 2.16 kg and high load
melt index at a 10 times higher load of 21.6 kg.
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