Appeal No. 1996-0328
Application 08/060,891
invention under the second paragraph of 35 U.S.C. §112 as will be discussed in detail infra in our new
rejection entered under the provisions of 37 CFR § 1.196(b). The examiner’s rejection of claim 36 is
reversed because no meaningful interpretation of the claim can be made. In re Steele, 305 F.2d 859,
862-63, 134 USPQ 292, 295 (CCPA 1962). The rejection of claim 36 is reversed.
4. The rejection of claims 15, 18, 19 and 21
a. The examiner’s and applicants’ positions
The examiner rejected claims 15, 18, 19 and 21 under 35 U.S.C. § 103 as unpatentable over the
combination of Lustig, Warren, Steinert, Machon and Kohyama patents. The examiner’s position may be
understood from the following excerpt from the Examiner’s Answer:
Claims 15, 18, 19 and 21 differ from the remaining claims in that they contain
a molecular weight distribution limitation, i.e., the melt flow ratio MFR and the
polydispersity defined as the ratio of the weight average molecular weight to the
number average molecular weight.
It would [have been] obvious to use the claimed terpolymers in producing the
(BSHSF) of the primary references because (1) Lustig generically includes them
and (2) the secondary references teach obvious variants of said terpolymers that
are taught to yield excellent films (Steinert, page 1, lines 47-49; page 3, lines 48-
57; Examples 5 and 10), Machon (page 4, lines 19-23; page 5, lines 6-28; page
8, lines 10-24; Example 6) and Kohyama (page 1, lines 5-9; page 14, lines 23-29;
page 19, lines 9-15). As previously disclosed, the Machon terpolymers have the
claimed molecular weight distribution and are said to form very tough films. The
terpolymer of Example 6 with a density of 0.915 would not substantially differ
from the claimed terpolymer having a density of less than 0.915.
The use of the terpolymers having the broader molecular weight distribution
would be especially obvious in view of Lustig because this reference does not
teach that it is critical that the ethylene polymers have a narrow molecular weight
distribution (column 2, lines 10-27; claims). While the copolymers prepared by the
process described in Lustig have relatively narrow molecular weight distributions,
i.e., MFR of 22 to 40 (column 8, line 67 to column 9, line 1), the reference does
not indicate that there is a correlation between molecular weight distribution and
desirable properties in the films. Thus, it is believed that the use of terpolymers
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