Ex parte SMITH et al. - Page 12

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

                                                   [T]he Examiner's reasons ... puts the cart before the horse in that these                                                    
                                         references are not in the field of endeavor and absent a specific motivating factor                                                    
                                         would not be reviewed.  [The examiner’s reasoning] relies-upon the open ended                                                          
                                         language in Lustig et al of “ethylene and at least one high alpha olefin" and the                                                      
                                         reference in Warren is to “... a major amount of ethylene with a minor amount of                                                       
                                         one or more comonomers selected from C  to about C  or higher alpha-olefins3              10                                                              
                                         ...”  Both of these patents utilize and disclose VLDPE bipolymers and are open to                                                      
                                         terpolymers or polymers made with 4, 5, 6, 7, or more comonomers.  This does                                                           
                                         not mean that they provide any motivation for going beyond use of the exemplified                                                      
                                         commercially available bipolymers.  Furthermore, there is no teaching of any                                                           
                                         means for selection from an infinite number of possible copolymer compositions                                                         
                                         to arrive at any polymer which would be equal in performance much less have any                                                        
                                         advantages over the disclosed bipolymers.  Hence, there is no practical motivation                                                     
                                         in these patents to review the catalyst/polymer manufacturing patent and modify                                                        
                                         the Lustig et al and Warren teachings to arrive at the instant invention.  What the                                                    
                                         Examiner is suggesting is an invitation to experiment and invent not the suggestion                                                    
                                         of a particular invention.   Emphasis original, [Bracketed material added.]49                                                                                                   
                                                   The Steinert et al reference is concerned with the production of linear low                                                  
                                         density ethylene polymers. It is silent regarding formation of multilayer films, or                                                    
                                         biaxially stretched films, or heat shrinkable films. Also, Steinert et al suggests that                                                
                                         the preferred terpolymers have a density of 0.915 to 0.925 g/cm  which is outside3                                                     
                                         the range claimed by the present invention. The Steinert et al reference on page 3,                                                    
                                         lines 48-59, emphasizes that their process produces terpolymers having better                                                          
                                         haze properties than either an ethylene/butene-1 or an ethylene/hexene-1 LLDPE                                                         
                                         resin of comparable density and suggests use for making food wrap. Food wraps                                                          
                                         are typically monolayer PVC, saran or polyethylene cast or blown films and the                                                         
                                         term "food wrap" at the time of publication of the Steinert et al reference was not                                                    
                                         typically used to refer to 90 C heat shrinkable films. Examples 5 and 10 of Steinerto                                                                                                    
                                         purportedly show production of terpolymer products having a density less than                                                          
                                         0.915 g/cm . However, no film was reported for the terpolymer resin of Example3                                                                                                                       
                                         10. Furthermore, there is no indication of how the 0.9 mil film of Example 5 was                                                       
                                         made, but applicants assume that it was a pressed film or cast film in view of the                                                     
                                         paucity of reported data. The reported haze of 26% is well above the preferred                                                         
                                         maximum haze value of 12% denoted in Steinert et al on page 3, lines 57-59 for                                                         
                                         the higher density terpolymers and much higher than the haze values achievable                                                         

                               49Brief, page 17, lines 3-26.                                                                                                                     

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