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
13
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