Appeal No. 2000-1551
Application 08/858,664
the same ethylene/comonomer ratio within that interpolymer” and “[t]he term “interpolymer” is
used herein to indicate a copolymer, or a terpolymer, or the like. That is, at least one other
comonomer is polymerized with ethylene to make the interpolymer” (page 4, line 33, to page 4,
line 5, and page 5, lines 20-23). See Morris, supra; Zletz, supra.
Considering first the ground of rejection under § 102(b) or § 103(a) over Stehling or
Ewen, or the combined teachings of these references, we must agree with appellants that the
examiner has not made out a prima facie case of anticipation, see, e.g., In re Spada, 911 F.2d
705, 707-08, 15 USPQ2d 1655, 1657 (Fed. Cir. 1990), or of obviousness, see, e.g., Thorpe,
supra, of these appealed product-by-process claims because he has not established that the blends
of Stehling and Ewen would reasonably appear to be identical or substantially identical to the
interpolymer product specified in these appealed claims. See generally, Spada, 911 F.2d at
708-09, 15 USPQ2d at 1657-58 (“The Board held that the compositions claimed by Spada
‘appear to be identical’ to those described by Smith. While Spada criticizes the usage of the word
‘appear’, we think that it was reasonable for the PTO to infer that the polymerization by both
Smith and Spada of identical monomers, employing the same or similar polymerization
techniques, would produce polymers having the identical composition.”); In re King, 801 F.2d
1324, 1326, 231 USPQ 136, 138 (Fed. Cir. 1986); In re Thorpe, 777 F.2d 695, 697, 227 USPQ
964, 966 (Fed. Cir. 1985); In re Best, 562 F.2d 1252, 1254-56, 195 USPQ 430, 432-34 (CCPA
1977). The examiner has not shown that either Stehling or Ewen teach or suggest an
interpolymer product having the specified properties which is prepared from combining at least
two homogeneous ethylene/alpha-olefin interpolymers having the specified properties, including
melting points, prepared by two different catalyst compositions that would provide the same
comonomer distribution and ethylene/comonomer ratio to the interpolymers that is imparted by
two specified CG catalyst compositions that have different reactivity.
Indeed, Stehling merely teaches that blends may be prepared from two different catalysts
at lines 31-32 of page 18, and exemplifies blends of containing interpolymers that are each
prepared from a single cyclopentadienyl metallocene catalyst activated with a cocatalyst, while
Ewen discloses that two metallocene catalysts of different reactivity activated with a cocatalyst
are used to prepare blends containing polyethylene, including linear low density polyethylene,
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