Appeal No. 1999-0905 6
Application No. 08/504,319
polymers including syndiotactic-atactic stereo block polymers. See column 2, lines 43-
48. Specifically, the invention is directed to novel metallocene catalysts for producing
stereo block polypropylene comprising alternating isotactic and atactic diastereoisomers.
See column 3, lines 28-32. The preferred catalysts are prepared from 2-arylindene
compounds having the formula in column 4, lines 45-56. Although the catalyst system
disclosed by Waymouth very broadly encompasses the catalysts of the claimed subject
matter, column 4, lines 8-43, the claimed subject matter before us is limited to a catalyst
derived from a specific 2-alkylindene compound having the formula disclosed in the Brief
on page 7. In contrast to the catalysts of Waymouth, each of which are disclosed as
isomerizing on a time scale that is slower than the rate of olefin insertion but faster than
the average time to construct a single polymer in order to obtain a block structure,
column 8, lines 16-20, the claimed subject matter is directed to, “substantially
amorphous polymers of propylene.” Furthermore, the examiner has not established that
the utilization of alkyl groups in place of the phenyl groups, i.e., 2-alkylindene derivatives
in place of 2-arylindene derivatives would necessarily result in an amorphous, atactic
polypropylene. Therefore, the examiner has not met his burden of establishing a prima
facie case of obviousness.
Based upon the above analysis, we have determined that the examiner’s legal
conclusion of anticipation and obviousness is not supported by the facts. “Where the
legal conclusion is not supported by [the] facts[,] it cannot stand.” In re Warner, 379
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