Appeal No. 94-3878
Application 07/740,529
m = 0 in the formula, would be operative in the claimed process,
and that from a structural and steric standpoint, those complexes
within the claimed formula where m = 0 are so different from those
complexes where m = 1 (the cyclopentadienyl metal complexes
disclosed in the examples of the appellant's disclosure) as to
preclude any reasonable prediction concerning their activity in
the claimed process. Referring to the limited disclosure of
metallocyclopentadienyl catalyst precursors, the examiner urges
that the notoriously high level of unpredictability and empiricism
associated with catalytic phenomena would render the disclosure
enabling only for those catalysts where m = 1.
The examiner, however, has failed to substantiate his
position with persuasive objective evidence or scientific
reasoning. He has not cited any evidence to show that one
skilled in the art would not have been enabled by the disclosure
coupled with information known in the art to practice the claimed
invention without undue experimentation. The examiner has not
explained how those complexes where m = 0 are so different from
those where m = 1 such that one skilled in the art, armed with
the supporting disclosure, would not be able to practice the
claimed invention.
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