Appeal No. 1999-1418
Application No. 08/418,847
section 103 rejection of these claims as being unpatentable
over Winter.
We also cannot sustain the examiner’s section 103
rejection of appealed claims 25 and 26 as being unpatentable
over Winter. These claims are directed to the appellants’
racemic 1, 2-diphenyl-ethylene-bis-(1-indenyl) zirconium
dichloride embodiment, and this embodiment concededly has been
shown by the appellants to exhibit unexpected results (e.g.,
see specification Examples 9 and 10 as well as the Dolle
declaration executed September 8, 1995). Nevertheless, the
examiner regards these showings as more narrow and thus not
persuasive of nonobviousness with respect to claims 25 and 26
because “[t]here is no evidence that similar results would be
obtained when using different concentrations of metallocenes
and/or aluminoxanes, different aluminum/zirconium ratios,
different polymerization temperatures and different olefin
monomers” (answer, page 8).
However, the examiner has provided no evidentiary support
for his concern that the metallocene embodiment under
consideration would not yield unexpected results if the above
noted parameters were altered. On the other hand, the
appellants’ showings reveal that this embodiment displays
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