Ex parte SMITH et al. - Page 13

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

                                         with oriented films. Discussion of the film of Example 5  includes a reference to %                                                    
                                         hexene extractibles, but film properties are not further characterized. It bears                                                       
                                         repeating that there is no suggestion that a heat shrinkable or biaxially stretched                                                    
                                         film was made or could be made. Given the paucity of test results, it is submitted                                                     
                                         that one of ordinary skill in the art, upon reviewing the teachings of Steinert in                                                     
                                         combination with either Lustig et al or Warren would conclude that the teachings                                                       
                                         are mutually exclusive and therefore they would not be combined. Assuming                                                              
                                         arguendo, that the combination were attempted, then it is as likely as not that an                                                     
                                         attempt would be made to use higher density terpolymers to make biaxially                                                              
                                         stretched heat shrinkable films. After all, Steinert et al points to the use of                                                        
                                         terpolymers having a density above 0.915 g/cm .                  3 50                                                                  
                               Applicants argue the limitations of claims 9, 10, 11, 14, 22 and 26 provide unexpected results.                                                  
                    Applicants’ position may be understood from the following excerpt from the Brief:                                                                           

                                                   Especially noteworthy are appealed claims 9, 10, and 26 which define                                                         
                                         comonomer ratios of 1-hexene to 1-butene which lead to the exemplified                                                                 
                                         formulations having unexpected results. Also, claims 18, 19, and 22 define an                                                          
                                         especially preferred embodiment of the invention having a broad molecular weight                                                       
                                         distribution which is exemplified in Example 1 which has an unexpected and                                                             
                                         surprising combination of high hot water puncture resistance, high dynamic                                                             
                                         puncture resistance and high shrinkage values at 90 C. Examples 12 and 16 alsoo                                                                    
                                         demonstrate the unexpected advantages attendant to using the defined films having                                                      
                                         a broad molecular weight distribution (claims 18, 19, and 22), high melt flow ratio                                                    
                                         (claims 15 and 21), low melt index (claims 11, 14, and 22). The broad impulse                                                          
                                         sealing range of the inventive C C C  terpolymer biaxially stretched, heat                                                             
                                                                                      2   4  6                                                                                  
                                         shrinkable film with the high burn through resistance relative to similar C C  and                                                     
                                                                                                                                       2  4                                     
                                         C C  films is particularly noteworthy.              51                                                                                 
                                           2   8                                                                                                                                

                               50Brief, paragraph bridging pages 27-28.                                                                                                          
                               51Brief, page 23, lines 1-19.                                                                                                                     

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