Appeal No. 96-0359
Serial No. 08/083,866
examiner that appellants have not proferred the requisite objective evidence to establish that the claimed
process of preparation produces an unobvious difference, e.g. in property, between the claimed
product and ethylene polymer blend product of Lee (Answer page 15). Moreover, Lee explicitly
discloses that the two reactors used in the ethylene blend production process can be reversed
(paragraph bridging columns 4-5).
Therefore, based on this record, we sustain the examiner's rejection of claims 3, 4, 6, 8, 9, 13
and 14 under 35 U.S.C. § 103 as unpatentable over Bailey is sustained.
3. Rejection of claims 3, 4, 6, 8, 9, 13 and 14 under the judicially created doctrine of
obviousness-type double patenting over copending application 08/083,864.
The examiner states
Claims 3, 4, 6, 8, 9, 13, and 14 stand provisionally rejected under the judicially
created doctrine of obviousness-type double patenting as being unpatentable over the
claims of copending application Serial No. 08/083,864. Although the conflicting claims
are not identical, they are not patentably distinct from each other because the two sets
of claims overlap significantly in terms of the properties. Since the products are made
by similar processes, it follows that they would possess substantially the same
properties. In re Sussman, 60 USPQ 538 (CCPA 1944).
This is a provisional obviousness-type double patenting rejection because the
conflicting claims have not in fact been patented. (Answer page 11)
Appellants argue (1) the appealed claims are for film production and the title of copending '864
application includes a reference to resins for blow molding, (2) the rejection is premature, and (3)
without a factual basis, because (i) the claims of copending '864 require polydispersity index values not
recited in the instant claims, (ii) the instant claims require elasticity values not recited in the copending
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