Appeal No. 2004-0770
Application No. 09/795,310
teaches that other polymers such as isotactic polypropylene should
be excluded from the composition of the invention. Accordingly,
appellants are in a weak position to argue a narrow claim
construction. Cf. In re Herz, 537 F.2d 549, 551-52, 190 USPQ 461,
463 (CCPA 1976). Therefore we construe claim 1 on appeal as
requiring the recited essential polypropylene components in
specified ratios of weight percentage, but open to include other
polymers and additives even in major amounts.
Appellants argue that the examiner has not explained how and
why the SPC of Cheng reads on the elastomeric polypropylene
required by claim 1 (Brief, page 6, citing definitions from
Kravchenko et al. and Coates et al.). Appellants argue that the
“predominantly crystalline” SPC of Cheng is not elastic merely
because it can be made using a metallocene catalyst system (Reply
Brief, page 2). These arguments are not persuasive since we
determine that the examiner has presented sufficient evidence
supporting a reasonable belief that the SPC of Cheng is the same as
appellants’ claimed elastomeric polypropylene, i.e., Cheng
discloses copolymers of propylene and another olefin produced using
the same catalyst system as disclosed and claimed by appellants.
See In re Spada, 911 F.2d 705, 708, 15 USPQ2d 1655, 1657-58 (Fed.
Cir. 1990)(“... it was reasonable for the PTO to infer that the
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