Appeal No. 2001-0172
Application 08/932,771
Kaminsky et al. (Kaminsky), Speed et al. (Speed) and Gurevitch et al. (Gurevitch), and as being
unpatentable over Stehling taken with Ewen et al (Ewen) Stevens ‘815, LaPointe, and Stevens
‘802 as further evidenced by the teachings of Kaminsky, Speed and Gurevitch.5
We find that, when considered in light of the written description in the specification as
interpreted by one of ordinary skill in this art, see, e.g., 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), the plain language of appealed claims 1 and 21 requires that the claimed processes for
preparing “an ethylene polymer product” and “an ethylene/α-olefin terpolymer product,”
respectively, by preparing at least two interpolymers, the “homogeneous ethylene/alpha-olefin
interpolymer” of claim 1 and the “terpolymer” of claim 21, each by an activated constrained
geometry (CG) catalyst composition which comprise at least one CG catalyst that has a different
reactivity, based on the catalyst composition as a whole, from the at least one other CG catalyst
composition, wherein the extent of the difference in reactivity between the CG catalyst
compositions is not specified in the appealed claims. The recitation with respect to the catalysts
constitute the only express process limitations, the other process limitations being those implied
to produce the at least two interpolymers having the specified melting point in both claims and
the specified comonomer content and the melt index in claim 21. The claims further include the
step of “combining” or “recovering a mixture,” respectively, of the at least two interpolymers so
as to obtain a “product” having the specified molecular weight distribution and the crystallization
onset temperature.
We find that appellants state in the written description of the specification that
[t]he homogeneous polymers and interpolymers of the present invention are herein
defined as defined in USP 3,645,992, the disclosure of which is incorporated herein by
4 Stevens ‘815 is referred to in the answer as “EP ‘815.”
5 Answer, pages 4-11. The examiner added Kaminsky, Speed and Gurevitch to each of the
grounds of rejection on the basis that these references had been referred to the original
explanation of the grounds of rejection in the Office action of September 16, 1994 (Paper No.
16), which Office action has been referred to in this respect through the prosecution of the
appealed claims. See, e.g., the Office action of January 25, 1999 (Paper No. 40). We note that
appellants have submitted argument with respect to these three references in the reply brief (page
3). The examiner has withdrawn Stricklen from the second ground of rejection (answer, page 2).
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