Appeal No. 96-0359
Serial No. 08/083,866
First, Table 3 on page 389 in Kirk-Othmer indicates that LLDPE fluid bed gas phase
manufacturing processes can yield LLDPE with densities from 0.918-0.94 g/cm . Thus, it is not clear3
that a polyethylene blend density with a lower limit of "about 0.940" necessarily excludes the
polyethylene blends of Lee, especially since, as noted by the examiner, the individual density of each
component HMW and LMW polymer may be as high as 0.965 g/cc. which overlaps with the claimed
density values (in Lee see column 2, lines 38-40; Answer page 15). Second, we agree with the
examiner that the claimed blend MFR overlaps with Lee's disclosure since each polymer component of
Lee may individually have an MFR of about 20 to about 70 (column 2, especially lines 40-41) and the
term "about" allows some latitude (Answer page 9). Third, Lee also appears to be concerned with the
production of LLDPE resins suitable for film production (e.g., " [t]he bulk of LLDPE is used in film
production" (column 1, lines 37-38) and the discussion of film production methods in the paragraph
bridging columns 1-2). Further, skill is presumed on the part of the artisan, rather than the lack thereof.
In re Sovish, supra. Fourth, as indicated supra, a U.S. patent (e.g., Lee) and its disclosure are
presumed valid (35 U.S.C. § 282), and this presumption of validity applies to the patent's disclosure as
well as to each of its claims. In re Spence, supra. After reviewing all the evidence of record on the
issue of enablement of the Lee patent, it is our judgment that appellants have not provided sufficient
evidence to establish that Lee is a non-enabling disclosure with respect to the production of HMW and
LMW components and blends as described. Finally, when a claimed product and a prior art product
reasonably appear to be substantially the same based on a similarity of reactants, reaction conditions
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