Appeal No. 95-2035
Serial No. 08/083,864
make that product unobvious over another identical or substantially identical product. Here, the
significant overlap of blend density, high load melt index and melt flow ratio, together with the significant
overlap of HMW component weight fraction, density , high load melt index and flow ratio as well as the
overlap of LMW component density and melt index between the two sets of claims provides a
reasonable basis for believing the ethylene blend polymers of the two copending applications are
identical or substantially identical. As to appellants' argument that this rejection is "premature" (Brief
page 14), we note that this a "provisional" rejection since the claims in the '866 application have not, in
fact, been patented.
In light of the foregoing, we shall sustain the examiner's provisional obviousness-type double
patenting rejection of claims 1-6 and 12-14 over claims 3, 4, 6, 8, 9, 13 and 14 of copending
application 08/083,866.
OTHER MATTERS
In the event of further prosecution, appellants and the examiner are advised to consider whether
the oath in this continuation-in-part application complies with 37 C.F.R. §§ 1.53 and 1.56.
CONCLUSION
In summary, (1) 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, and (2) the
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