EWEN V. DOLLE et al. - Page 13




          Interference 103,482                                                        
          Ewen’s U.S. Patent 5,036,034, i.e., “[a] metallocene compound               
          used to make a catalyst to produce hemiisotactic olefin                     
          polymers” (Claim 1) and “[a] metallocene catalyst to produce                
          hemiisotactic olefin polymers” (Claim 5), is not described in               
          U.S. Application 07/220,007, issued January 9, 1990, as U.S.                
          Patent 4,892,851, and therefore, held the subject matter                    
          claimed in Ewen’s U.S. Patent 5,036,034, is not entitled under              
          35 U.S.C.  120 to the benefit of the July 15, 1988, filing                 
          date of U.S. Application 07/220,007 (Paper No. 52, p. 9,                    
          footnote 3):                                                                
                    Ewen is not entitled to the filing date of                        
          application                                                                 
               07/220,007 under 35 U.S.C.  120.  In order to be                      
          entitled                                                                    
               to the benefit of an earlier application the subject                   
          matter                                                                      
               of the claims of Ewen 034 and the claims of Ewen reissue               
               application 08/489,800 must be described in the earlier                
               application.  Application 07/220,007 does not describe                 
               hemiisotactic polymers or metallocene compounds which                  
          lack                                                                        
               bilateral symmetry.  While such compounds might be                     
          obvious                                                                     
               from the 07/220,007 disclosure, entitlement to an earlier              
               filing date does not extend to subject matter which is                 
               not described but would be obvious.  Lockwood v. American              
               Airlines, 107 F.3d 1565, 1571-72, 41 USPQ 1961, 1966                   
               (Fed. Cir. 1997).                                                      
               The APJ held that Dolle had not sustained its burden to                
          establish that Claims 1-3 and 5-7 of Ewen’s U.S. 5,036,034                  
          filed October 10, 1989, are unpatentable under 35 U.S.C.  103              
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