Appeal No. 2000-1551
Application 08/858,664
and a copolyethylene-alpha-olefin interpolymer. However, the examiner has not established that
the metallocene catalysts of either or both of these references produce the same interpolymers
that would result from two specified CG catalyst compositions that have different reactivity.
Thus, it does not appear from this record that the claimed products are identical or substantially
identical to those of Stehling and Ewen. Accordingly, we reverse this ground of rejection.
We further must agree with appellants that the examiner has not made out a prima facie
case of obviousness of the claimed products under § 103(a) by combining the teachings of CG
catalyst compositions in Stevens ‘815, Stevens ‘802 and LaPointe with the processes taught by
Stehling and by Ewen (answer, pages 9-10). The examiner alleges that the metallocene catalysts
of Stehling and Ewen and the CG catalysts of the additional references are similar “single-site
catalysts” which produce similar results and thus one of ordinary skill in the art would have used
the CG catalysts in the processes of Ewen and Stehling with the expectation of similar results.
However, the examiner has not established on the record that the same or similar polymers are in
fact obtained with the two types of catalysts, and indeed, has not rebutted appellants’ contentions
that the results are different.
Thus, on this record , there is no evidence that one of ordinary skill in this art would have
modified the processes of Stehling and of Ewen by using the CG catalysts of Stevens ‘815,
Stevens ‘802 and LaPointe in the expectation of obtaining the same products produced with the
metallocene catalysts taught therein. Even if there was, we find that the examiner has not
identified any teaching in this combination of references that would have led one of ordinary skill
in this art to the specifically claimed interpolymer product of the appealed claims from the very
general disclosure of blends in Stehling and in Ewen. See In re Jones, 958 F.2d 347, 349-51, 21
USPQ2d 1941, 1943-44 (Fed. Cir. 1992) (“Conspicuously missing from this record is any
evidence, other than the PTO’s speculation (if it be called evidence) that one of ordinary skill in
the herbicidal art would have been motivated to make the modifications of the prior art salts
necessary to arrive at the claimed . . . salt.”).
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