Appeal No. 2000-1551
Application 08/858,664
or Ewen as previously applied taken with LaPointe et al. (LaPointe), Stevens et al. (Stevens
‘802), and Stevens et al. (Stevens ‘815),3 further in view of Kaminsky et al., Speed et al. and
Gurevitch et al.4
In order to consider the examiner’s application of the applied prior art to the appealed
claims, we must first interpret the claims 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
Hyatt, 211 F.3d 1367, 1372, 54 USPQ2d 1664, 1667 (Fed. Cir. 2000); 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 appealed claims 16 through 18 are
drawn in product-by-process format to an interpolymer product which is a blend of two
homogeneous ethylene/alpha-olefin interpolymers, wherein the specified process limitations
including the use of two activated constrained geometry (CG) catalyst compositions containing
an activating cocatalyst and having different reactivity, to prepare respective homogeneous
interpolymer ingredients having the specified properties, and the step of combining the
interpolymer ingredients to obtain a interpolymer product having the specified properties, must
be considered in determining the scope of the claimed interpolymer product. 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 Brown, 459 F.2d 531, 535, 173 USPQ 685, 688 (CCPA
1972).
Thus, while the appealed claims encompass an interpolymer product that is prepared by
any process, the specified process conditions and properties of the ingredient homogeneous
interpolymers and of the interpolymer product nonetheless define the claimed product. We note
in this respect that appellants set forth in the written description of their specification that
“homogeneous interpolymers are those in which the comonomer is randomly distributed within a
given interpolymer molecule and wherein substantially all of the interpolymer molecules have
3 Stevens ‘815 is referred to in the answer as “EP ‘815.”
4 Answer, pages 3-10. The examiner withdrew Stricklen from each of the grounds of rejection
(answer, page 2). A discussion of Kaminsky et al., Speed et al. and Gurevitch et al. is not
necessary to our decision.
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