Appeal No. 1997-4305
Application No. 08/477,023
The examiner must have realized this, for in his response to appellant’s
arguments he states (Answer, page 4) “Hughes PPF contains and/or suggests
amounts of sb [sodium benzoate] within [the] range of ‘up to 1,000 ppm’ (see
column 3, line 1).” According to the examiner (Answer, page 3) the only difference
between the claimed invention and either Kitamura patent is the use of sodium
benzoate.
However, we note that Hughes teaches (column 3, lines 7-14) that “[n]ot all
nucleating agents promote the formation of hexagonal crystals, … on the contrary,
most nucleating agents presently appear to promote the formation of monoclinic
crystals. For example, … sodium benzoate … preferentially promote[s] the
formation of monoclinic crystals rather than hexagonal crystals.” This teaching in
Hughes is important when considering the examiner’s suggestion that Hughes teach
sodium benzoate within the range of “up to 1,000 ppm” at column 3, line 1.
According to Hughes (column 2, line 71 to column 3, line 5):
crystalline polypropylene having a preponderance of hexagonal
crystals, i.e. at least 50 percent of the crystals are in the hexagonal
form, can be made by dispersing in the polypropylene from about
0.05 to about 5, … weight percent, based on the total weight of the
polymer, of a nucleating agent that preferentially causes the formation
of hexagonal crystals rather than monoclinic crystals [emphasis
added].
While it is unclear if this weight percent is comparable to the claimed range of up to
1,000 ppm, it is clearly not relevant to sodium benzoate, since sodium benzoate, as
taught by Hughes, “preferentially promotes the formation of
monoclinic crystals rather than hexagonal crystals.” As a result, the examiner failed
to account for this limitation of the claimed invention. Kitamura I, Kitamura II and
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