Ex parte SMITH et al. - Page 10




                    Appeal No. 1996-0328                                                                                                                                        
                    Application 08/060,891                                                                                                                                      

                    production.   All of these patents describe the properties of ethylene copolymers including, inter alia, the46                                                                                                                                           
                    density.  We hold that the references relied upon by the examiner to be within the field of ethylene                                                        
                    copolymers and the production of ethylene copolymers.  Thus, the references relied upon by the examiner                                                     
                    are from the same field of endeavor as applicants’ invention.  We conclude that the patents relied on by                                                    
                    the examiner are analogous prior art.                                                                                                                       
                               3.        The rejection of claims 1, 7-14, 16, 17, 20, 22 and 26-36                                                                              
                                         a.        The examiner’s and applicants’ positions                                                                                     
                               The examiner rejected claims 1, 7-14, 16, 17, 20, 22 and 26-36 under  35 U.S.C.  103 as                                                         
                    unpatentable over the combination of Lustig, Warren, Steinert, Machon, Kohyama, Tominari, Sugahara                                                          
                    and Durand patents.  The examiner’s position may be understood from the following excerpt from the                                                          
                    Examiner’s Answer:                                                                                                                                          
                                         It would [have been] obvious to use (C -C -C ) terpolymer having a density less                                                        
                                                                                           2   4    6                                                                           
                                         than 0.915 in the process of the primary references, i.e., to make (BSHSF)                                                             
                                         [biaxially stretched heat shrinkable films], because (1) the primary reference                                                         
                                         generically includes such terpolymers and (2) such terpolymers are known as                                                            
                                         taught by Steinert (Examples 5 and 10) or are obvious variants of ethylene                                                             
                                         polymers disclosed by the other secondary references. These terpolymers are not                                                        
                                         only included by Steinert but are described by the reference as making excellent                                                       
                                         films. Thus, Steinert teaches that the (C -C -C ) terpolymers are especially useful                                                    
                                                                                           2   4    6                                                                           
                                         for the manufacture of food wrap films (page 1, lines 47-50) and have better                                                           
                                         optical properties and lower hexane extractables than comparable C -C  or C -C         2   4      2    6                               
                                         copolymers (page 3, lines 48-57). Further, such terpolymers would be obvious                                                           
                                         from Durand who teaches (1) that films made from (C -C -C ) terpolymers having                                                         
                                                                                                             2   4   6                                                          
                                         the claimed density (column 3, lines 11-17; column 7, lines 5-6) have excellent                                                        
                                         optical properties and have mechanical properties that are as good or better than                                                      
                                         (C -C ) copolymers (column 1, lines 44-52) and that the (C -C -C ) terpolymer2    6                                                               2   4    6                                                 
                                         films have high mechanical strength (column 8, lines 46-53). The films would also                                                      
                                         be obvious from Machon who teaches that (C -C -C ) terpolymers having the                                                              
                                                                                                      2   4    6                                                                


                               46Steinert, page 3, lines 36-59; Machon, page 4, lines 3-7; Kohyama, page 14, lines 23-32; Tominari, column 4,                                    
                    lines 8-13; Sugahara, page 2, lines 18-23; and Durand, column 1, lines 9-14.                                                                                
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