Appeal No. 95-2035
Serial No. 08/083,864
on this record, we find the Tong I, Tong II and Shirodkar affidavits lack sufficient probative value to
overcome the rejection.
The rejection of claims 1-6 and 12-14 under 35 U.S.C. § 102(b) as anticipated by or in the
alternative, under 35 U.S.C. § 103 as unpatentable over Bailey is sustained.
2. Provisional rejection of claims 1-6 and 12-14 under the judicially created doctrine of
obviousness-type double patenting copending application 08/083,866.
The examiner states
Claims 1-6 and 12-14 are provisionally rejected under the judicially created
doctrine of obviousness-type double patenting as being unpatentable over claims 3, 4,
6, 8, 9, 13, and 14 of copending application Serial No. 08/083, 866. Although the
conflicting claims are not identical, they are not patentably distinct from each other
because the two sets of claims overlap. The properties of the blend specified in the
copending application are substantially the same as those recited in the instant claims.
This is a provisional obviousness-type double patenting rejection because the
conflicting claims have not in fact been patented. (Answer page 6)4
Appellants' arguments that film versus blow molded products have different requirements, and
that the claims in this application do not recite dynamic elasticity and complex viscosity and the claims in
the '866 application do not recite a polydispersity index (Brief page 15) are not persuasive. The same
ethylene polymer blends can be used for either the manufacture of film or in blow molding techniques
(see e.g., Bailey's abstract). Moreover, merely reciting a new property or use of a product does not
4"Provisional" rejections of the sort here involved are authorized by MPEP § 804 and have been sanctioned
by this Board (see, e.g., Ex parte Karol, 8 USPQ2d 1771 (Bd. Pat. App. & Int. 1988)) and by the predecessor of our
reviewing court (see, e.g., In re Wetterau, 356 F.2d 556, 148 USPQ 499 (CCPA 1966)).
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