Appeal No. 1998-3209
Application 08/338,284
from 15 to 100 J/m, and stress at yield from 35 to 45 MPa, and from 10 to 60% by weight of a
fraction (A) prepared in a first stage having [η] ≥ 2.5 dl/g.
The appealed claims, as represented by claim 1, are drawn to a crystalline homopolymer
of propylene or a copolymer thereof with a specified amount of another alpha-olefin specified in
terms of the catalyst system used in a sequential polymerization of at least two stages and of the
properties which it must possess. According to appellants, the claimed polymer and copolymer
has good mechanical properties and processability in the molten state (specification, page 6).
The reference relied on by the examiner is:
Cohen et al. (Cohen) 5,218,052 Jun. 8, 1993
The examiner has rejected appealed claims 1, 2 and 8 under 35 U.S.C. § 103(a) as being
unpatentable over Cohen.1
Appellants state in their brief (page 3) that the appealed “claims stand or fall together.”
Thus, we decide this appeal based on appealed claim 1. 37 CFR § 1.192(c)(7) (1995).
We affirm.
Rather than reiterate the respective positions advanced by the examiner and appellants,
we refer to the examiner’s answer and to appellants’ brief and reply brief for a complete
exposition thereof.
Opinion
In order to consider the examiner’s application of Cohen to appealed claim 1, we must
first interpret this claim in light of the written description in appellants’ specification as it would
be interpreted by one of ordinary skill in this art. See generally, In re Morris, 127 F.3d 1048,
1054-55, 44 USPQ2d 1023, 1027 (Fed. Cir. 1997); In re Zletz, 893 F.2d 319, 321-22, 13
USPQ2d 1320, 1322 (Fed. Cir. 1989). It is clear that claim 1 is drawn in product-by-process
format wherein the process limitations “sequential polymerization in at least two stages” and the
“presence of a catalyst comprising” at least the stated components, must be considered in
determining the scope of the claimed crystalline homopolymers of propylene and copolymers
propylene and another alpha-olefin, see In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966
(Fed. Cir. 1985); In re Wertheim, 541 F.2d 257, 271, 191 USPQ 90, 103-04 (CCPA 1976); In re
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