Ex parte ONG et al. - Page 18




               Appeal No.      96-0359                                                                                               
               Serial No.      08/083,866                                                                                            

               '864 claims, (iii) the instant claims recite a FR of no higher than about 15, whereas the claims of                   

               copending '864 recite a FR greater than 10 (claim 1 of  '864) and 10 to 30 (claim 5 of  '864), and (iv)               

               the claims of copending '864 are silent as to "film" production and dart drop measurements (Brief pages               

               21-23, Reply Brief page 17).                                                                                          

                       These arguments are not persuasive.  It appears that the same ethylene blends can be used for                 

               either the manufacture of film or in blow molding techniques (see, e.g., Bailey's abstract).  Secondly,               

               "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, 557-58, 148                    

               USPQ 499, 501  (CCPA 1966)).  Third, merely reciting a new property or use of a product does not                      

               make that product unobvious over another identical or substantially identical product. Titanium Metal                 

               Corp. v. Banner, 778 F.2d 775, 782, 227 USPQ 773, 777-78 (Fed. Cir. 1985).  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 polymer blends of the two copending applications are identical or substantially            

               identical.                                                                                                            





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