Appeal No. 95-2035
Serial No. 08/083,864
HMW and LMW components and blends as described. Appellants have not rebutted the examiner's
position that this teaching would have been sufficient taken in combination with ordinary skill in the art
to obtain the claimed ethylene polymers (Answer page 11). A reference anticipates a claim if it
discloses the claimed invention such that a skilled artisan could take its teachings in combination with his
own knowledge of the particular art and be in possession of the invention. In re Graves, 69 F.3d
1147, 1152, 36 USPQ2d 1697, 1701 (Fed. Cir. 1995), cert. denied, 116 S.Ct. 1362 (1996), quoting
from In re LeGrice, 301 F.2d 929, 936, 133 USPQ 365, 372 (CCPA 1962). Moreover, the
patentability of a product-by-process is based on the product itself. Where, as here, a product-by-
process claim is rejected over a prior art product that appears to be identical to the claimed product,
although produced by a different process, the burden is on applicants to produce evidence establishing
an unobvious difference between the claimed product and the prior art product. In re Thorpe, 777
F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985); In re Marosi, 710 F.2d 799, 803, 218 USPQ
289, 292-93 (Fed. Cir. 1983). In our view, appellants have not met their burden.
Appellants have not shown that the claimed blend, HMW component and LMW component
are unobviously different from the preferred blend and components of Bailey. Neither the Tong I
affidavit executed November 2, 1992, the Tong II affidavit executed April 5, 1993, nor the Shirodkar
affidavit executed March 19, 1993 is sufficient to establish either the alleged differences between the
claimed polymers and the preferred polymers of Bailey or the asserted unexpected results of improved
die swell and melt flow ratios.
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