Appeal No. 1997-3282
Application No. 08/189,314
suggested that the Shibano polyolefins could have had a CDBI
of greater than 70 percent or could have been made by
metallocene catalysis or any other polymerization method.
Further, the Examiner has failed to cite any reference that
had suggested any advantage of a polyolefin having a CDBI of
greater than 70 percent or suggested that one skilled in the
art at the time [the invention was made] knew of [] very low
density polyethylenes (VLDPE) having a narrow composition
distribution” (brief, page 5). The test for obviousness is
not whether the person of ordinary skill in the art could have
made the claimed invention given the applied references and
the state of the art at the time the invention was made. A
conclusion that the claimed subject matter is prima facie
obvious must be supported by evidence, as shown by some
objective teaching in the prior art or by knowledge generally
available to one of ordinary skill in the art that would have
led that individual to combine the relevant teachings of the
references to arrive at the claimed invention. See In re
Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir.
1988).
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