Appeal 2007-3668
Application 11/031,587
is the only rejection on appeal. The rejection questions the support for
independent claims 6 and 10. We will limit our discussion to these two
claims.
Based on the totality of the record, we affirm the rejection of claim 10
under the first paragraph of § 112 for lack of written description essentially
for the reasons stated in the Answer as well as those reasons set forth below.
We reverse the rejection of claims 2, 3, and 6-9 under the first paragraph of
§ 112 for lack of written description essentially for the reasons stated in the
Brief and Reply Brief, as well as those reasons noted below.
THE SUBJECT MATTER OF CLAIM 10.
As correctly argued by the Examiner the original specification only
provides support for comparing polymers produced from catalyst comprising
triisobutylaluminum and polymers produced from catalyst comprising
triethyl aluminum not any organoaluminum except triisobutylaluminum
(Answer 4 and 6-7). The Examiner asserted that Ziegler catalysts are
recognized to generally be unpredictable in nature (Answer 6). As such, the
Examiner concluded that “one [of ordinary skill in the art] cannot predict
that reduced polymer fines due to replacing triisobutylaluminum with
triethyl aluminum in the catalyst composition would extend to the process by
replacing triisobutylaluminum with any organoaluminum” (Answer 6).
Appellants have not disagreed with the Examiner's contention that
Ziegler catalysts are recognized to generally be unpredictable in nature (See
Reply Br. generally). Rather, Appellants contend that those skilled in the art
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