Appeal 2007-2136
Application 10/457,769
reactor, ethylene, n-hexene, and hydrogen gas are continuously fed into the
reactor (id. at col. 12, ll. 12-23).
We agree with the Examiner that the continuous addition of ethylene,
n-hexene, and hydrogen gas results in the addition of molecular hydrogen
and first olefin after the polymerization is begun. In addition, because
Winslow describes methods that are within the method steps recited in
claim 28, we agree with the Examiner that it is reasonable to conclude that
the methods described in Winslow either inherently result in or render
obvious a method of forming a polyolefin resin having the density, melt
index, and long chain branching index recited in claim 28. Cf. In re Marosi,
710 F.2d 799, 803, 218 USPQ 289, 292-93 (Fed. Cir. 1983) (“Where a
product-by-process claim is rejected over a prior art product that appears to
be identical, . . . the burden is upon the applicants to come forward with
evidence establishing an unobvious difference between the claimed product
and the prior art product.”).
Appellants argue that
claim 28 discloses a process with two distinct polymerization
steps. . . . Moreover, the wording of claim 28 also makes it
clear that a process with two distinct polymerization steps is
disclosed. For example, claim 28 goes on to state “wherein
additional polymerization occurs in step c.” Clearly, such a
description of step c) is only consistent with step c) being a
distinct step in which more polymerization occurs and not the
single polymerization step of Winslow et al. in which reactants
are continuously being added.
(Br. 5-6.)
We are not persuaded by this argument. We agree with Appellants
that claim 28 requires two steps. In particular, claim 28 requires some
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