Appeal No. 1998-3157
Application No. 08/466,797
The examiner states the Declaration is not persuasive
because it is not a comparison with the closest prior art.
(Answer, page 10). However, we agree with appellants’
statement made in the paragraph bridging pages 18 and 19 of
their Brief, that the Declaration is appropriate evidence
to show that the examiner has not provided a prima facie
case. Hence we take notice of the evidence in the
Declaration.
The examiner believes that Example 15 of McKenzie is
the closest disclosure in McKenzie to appellants’ claimed
invention. (Answer, page 10). We find, however, that
Example 15 does not teach appellants’ claimed feed
flowrate. Although the spray dryer used in Example 15 is
not laboratory scale, the examiner has not explained
whether it satisfies the feed flowrate requirement of claim
5. Furthermore, the examiner has not explained why one
skilled in the art would choose to utilize a spray dryer
from spray drying an aqueous slurry of ammonium dawsonite
wherein the feed flowrate is from 3.0 to 4.0 kg/minute for
forming a spherical polyethylene having an internal
attrition angle of from 30 to 40°. Yet, the examiner
states he “has a reasonable basis to suspect that the
polyethylene produced by using the titanium catalyst of
McKenzie’s example 15 possesses the similar property
[claimed internal attrition angle] based on the fact that a
substantially similar spray dryer being used to make the
catalyst support.” (Answer, page 7).
Given the above-mentioned short comings regarding the
spray drying operation of McKenzie’s Example 15, we do not
find the examiner’s speculation reasonable. In this
context we also appreciate appellants’ statement made on
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