Appeal No. 1999-1833 9
Application No. 08/480,728
6. See In re Grasselli, 713 F.2d 731, 743, 218 USPQ 769, 778 (Fed. Cir. 1983); In
re Tiffin, 448 F.2d 791, 792, 171 USPQ 294, 294 (CCPA 1971). It is well settled that
"[O]bjective evidence of nonobviousness must be commensurate in scope with the claims."
(quoting In re Lindner, 457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972); In re
Dill, 604 F.2d 1356, 1361, 202 USPQ 805, 808 (CCPA 1979) ("The evidence
presented to rebut a prima facie case of obviousness must be commensurate in scope with
the claims to which it pertains.").
The evidence submitted is limited to 6 examples directed to the combination of an
additive with a catalyst. The specific catalyst is undisclosed. We find the examples are
directed to a single trialkyl aluminum compound, i.e., triethylaluminum. We find that the
examples are directed to a single external electron donor cyclohexylmethyldimethoxy-
silane. We find that the ratio of lithium compound to transition metal is 0.2 to 1.0. The
claimed subject matter however, is directed to an entire class of catalyst, as opposed to the
single undisclosed catalyst utilized in Examples 1 to 6. In addition, the claimed subject
matter is directed to electron donors falling within the class having the general
formula SiRm(OR’)4-m. We further find that the claimed subject matter is directed to the
polymerization of olefins, whereas Example 1 to 6 is directed to the polymerization of
propylene. It cannot be determined from the data submitted that an increase in molecular
weight and a decrease in xylene solubles would result from the utilization of other catalysts,
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