Appeal No. 96-0359
Serial No. 08/083,866
'864 claims, (iii) the instant claims recite a FR of no higher than about 15, whereas the claims of
copending '864 recite a FR greater than 10 (claim 1 of '864) and 10 to 30 (claim 5 of '864), and (iv)
the claims of copending '864 are silent as to "film" production and dart drop measurements (Brief pages
21-23, Reply Brief page 17).
These arguments are not persuasive. It appears that the same ethylene blends can be used for
either the manufacture of film or in blow molding techniques (see, e.g., Bailey's abstract). Secondly,
"provisional" rejections of the sort here involved are authorized by MPEP § 804 and have been
sanctioned by this Board (see, e.g., Ex parte Karol, 8 USPQ2d 1771 (Bd. Pat. App. & Int. 1988))
and by the predecessor of our reviewing court (see e.g., In re Wetterau, 356 F.2d 556, 557-58, 148
USPQ 499, 501 (CCPA 1966)). Third, merely reciting a new property or use of a product does not
make that product unobvious over another identical or substantially identical product. Titanium Metal
Corp. v. Banner, 778 F.2d 775, 782, 227 USPQ 773, 777-78 (Fed. Cir. 1985). Here, the significant
overlap of blend density, high load melt index and melt flow ratio, together with the significant overlap
of HMW component weight fraction, density high load melt index and flow ratio as well as the overlap
of LMW component density and melt index between the two sets of claims provides a reasonable basis
for believing the ethylene polymer blends of the two copending applications are identical or substantially
identical.
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