Appeal No. 1997-3234
Application 08/040,671
See In re Ochiai, 71 F.3d 1565, 1566 n.2, 37 USPQ2d 1127, 1129
n.2 (Fed. Cir. 1995); 37 CFR § 1.192(c)(7)(1995).
Regarding claim 1, EP ‘312 discloses a supported
polymerization catalyst which is made by reacting an aluminoxane
with a metallocene in the presence of a support which can be a
polymeric support (page 5, lines 20-30; page 13, lines 1-8). The
reference does not disclose the pore volume of the polymeric
support. However, the teaching that a polymeric support is used
would have led one of ordinary skill in the art to use a
commercially available polymeric support such as those which
appellants acknowledge were commercially available and contain
about 75 vol% of cavities (specification, page 23, lines 24-30).1
The examiner argues that one of ordinary skill in the art would
have desired to use in the EP ‘312 catalyst a high-pore-volume
polymeric support, such as that acknowledged by appellants,
because of its high surface area which causes the catalyst
activity to be high (answer, pages 4-5). Because this argument
is reasonable and appellants have not challenged it, we accept it
1 It is axiomatic that our consideration of the prior art
must, of necessity, include consideration of the admitted prior
art. See In re Hedges, 783 F.2d 1038, 1039-40, 228 USPQ 685, 686
(Fed. Cir. 1986); In re Davis, 305 F.2d 501, 503, 134 USPQ 256,
258 (CCPA 1962).
3
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