Appeal No. 1998-3251
Application 08/659,554
several of the same kinds of polymers as in the compositions of Kent, in a thermoformable chemical
resistant blend that contains from 15 to 40 parts by weight of an olefin polymer. This reference
discloses that the olefin polymer can preferably be a high density polyethylene having a density from
.945 to .970, which is “preferred due to the stiffness . . . [imparted] to the final, thermoformable, resin
blend,” and has “a melt viscosity, which is matched or nearly matched to that of the monovinylidene
aromatic resin, thereby enabling the resulting blend to achieve thorough melt mixing due to high shear
stresses between the components and appropriate phase domain size reduction” (col. 6, lines 21-35).
Thus, the issue with respect to whether the composition encompassed by appealed claim 1
would have been prima facie obvious over the combined teachings of Kent and Swartzmiller is whether
one of ordinary skill in the art would have found in such teachings or in other identified knowledge in the
art, the reasonable suggestion to modify the composition of Kent in the reasonable expectation of
obtaining the claimed composition and its properties. We, like appellants, find no objective teaching,
suggestion or motivation in the combination of these two references which would have led this person to
reduce the melt flow index of the high density polyolefins of Kent, which density range overlaps with the
claimed density range, from “about 5,” as disclosed to be necessary therein, to “0.9 or less” as claimed
in appealed claim 1. See In re Sebek, 465 F.2d 904, 907, 175 USPQ 93, 95 (CCPA 1972) (“Where,
as here, the prior art disclosure suggests the outer limits of the range of suitable values, and that the
optimum resides within that range, and where there are indications elsewhere that in fact the optimum
should be sought within that range, the determination of optimum values outside that range may not be
obvious.”); cf. In re Geisler, 116 F.3d 1465, 1470, 43 USPQ2d 1362, 1366 (Fed. Cir. 1997) (“The
statement in Zehender that ‘[i]n general, the thickness of the protective layer should not be less than
about [100 Angstroms]’ falls far short of the kind of teaching that would discourage one of ordinary skill
in the art from fabricating a protective layer of 100 Angstroms or less.”).
Indeed, the examiner has not established that the melt flow index as disclosed by Kent is
measured differently than as specified in appealed claim 1, or that one of ordinary skill in this art would
have found in the specific teachings of Swartzmiller, or in reasonable inferences to be drawn from such
ground of rejection (answer, page 3).
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