Appeal No. 1998-3157
Application No. 08/466,797
THE REJECTION
Claim 5 stands rejected under 35 U.S.C. § 103(a) as
unpatentable for obviousness over McKenzie in view of Hang,
Green, Martin, Lo and Pistor.
OPINION
We have carefully considered all of the arguments
advanced by appellants and the examiner and agree with
appellants that the aforementioned rejection is not well
founded. Accordingly, we reverse this rejection.
Appellants’ process claim 5 requires, inter alia, a
feed flowrate of ammonium dawsonite into the spray-dryer of
from 3.0 to 4.0 kg/minute. Claim 5 also requires formation
of spherical polyethylene having an internal attrition
angle of from 30 to 40°.
Appellants point out that their claimed invention
involves a large scale spray dryer. (Brief, page 17). We
find that the claimed feed flow rate of 3.0 to 4.0
kg/minute corresponds with a large scale spray dryer.
Appellants rely upon the executed Declaration Under 37
CFR § 1.132 filed November 15, 1996 (hereinafter referred
to as “Declaration”) for showing that when one would have
tested a process like that of the present invention, except
using a laboratory scale spray dryer, one would not have
prepared a spherical polyethylene having an internal
attrition angle of 30 to 40°; rather, one would have
prepared a spherical polyethylene having an internal
attrition angle on the order of 60 to 80°. Appellants
further argue that having obtained such point results, one
would have gone on to test a different process rather than
scaling up a poor process. (Brief, pages 17-18,
Declaration, pages 4-8).
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