Appeal No. 1996-0328
Application 08/060,891
process for the formation of ethylene, butene-1 and hexene-1 polymers which are suitable for the formation
of films with reduced hexane extractable concentrations and improved optical properties. Further, example
5 is evidence that films can be made from the described ethylene terpolymers. It is not our position that
Steinert’s example 5 describes biaxially stretched heat shrinkable film. However, as stated above, the
person having ordinary skill in the art would have been motivated to form biaxially stretched heat shrinkable
films from the terpolymers described by Steinert in order to obtain biaxially stretched heat shrinkable films
with improved optical properties, improved haze and low hexane extractable concentration.
Applicants argue the present invention exhibits an unexpected combination of properties not
disclosed or taught by the cited references especially shrink, puncture resistance and heat sealability. It is
well settled that unexpected results must be established by factual evidence. Mere argument or conclusory
statements in the specification does not suffice. In re Soni, 54 F.3d 746, 750, 34 USPQ2d 1684, 1687
(Fed. Cir. 1995); In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984); see also
In re Wood, 582 F.2d 638, 642, 199 USPQ 137, 140 (CCPA 1978) ("Mere lawyer's arguments and
conclusory statements in the specification, unsupported by objective evidence, are insufficient to establish
unexpected results."). Applicants have failed to direct us to any objective evidence, in the specification or
elsewhere, comparing the closest prior art with the claimed invention. The rejection of claim 1, 7, 8, 12,
13, 16, 17, 20, 27-31 and 33-35 is affirmed.
2. Patentability of claims 9, 10 and 14
Claim 9 adds the following limitation to the subject matter of claim 1: “wherein said 1-hexene
component of the terpolymer is present in a weight ratio of about 3:1 to 1:1 for 1-hexene relative to
monomer (c).” Claim 10 adds the following limitation to the subject matter of claim 1: “wherein said 1-
hexene component of the terpolymer is present in a weight ratio of about 3:1 of 1-hexene relative to
1-butene.” It is noted that the ratio is specified in whole numbers. The specification does not describe the
range that is acceptable by the use of the term “about” when describing the ratio of 1-hexene to 1-butene.
Steinert’s example 5 describes a terpolymer where the weight ratio for hexene-1 to butene-1 is 2.7. The
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