Appeal No. 1996-3306
Application No. 08/145,380
particular polyethylenes claimed, with melt indices and viscosities in the ranges specified,
and combine these with an organic peroxide in the manner and order claimed. What we
have instead is a myriad of possibilities, one of which could be the claimed invention. We
have no doubt that each of the claimed components are known and taught and that the
order in which they are combined is a possibility. The mere fact that the prior art could be
modified does not make the modification obvious unless the prior art suggested the
desirability of the modification. In re Gordon, 733 F.2d 900, 902, 221 USPQ 1125, 1127
(Fed. Cir. 1984). Something in the prior art as a whole must suggest the desirability, and
thus the obviousness, of making the combination. Lindemann Maschinenfabrik GMBH v.
American Hoist & Derrick Co., 730 F.2d 1452, 1462, 221 USPQ 481, 488 (Fed. Cir.
1984). Here examiner has not pointed to anything in the reference which would lead one to
the claimed combination and we can find none.
The only reason for selecting the components and combining them as claimed is
provided by appellant's disclosure. On pages 2 -4 of the specification, appellants indicate
that by providing post-consumer and virgin polyethylenes with melt indices and densities in
the ranges claimed, certain processing properties, such as stiffness and environmental
stress crack resistance, are improved. By combining these components in the manner and
order claimed the resulting blend shows improved environmental stress crack resistance
and die swell (specification, p. 8, Table 2, method 2). However, it is impermissible to use
these disclosures from appellants' specification as a blueprint to reach the claimed
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