Appeal No. 2001-0172
Application 08/932,771
re Baxter, 656 F.2d 679, 686-87, 210 USPQ 795, 802-03 (CCPA 1981) (“As long as one of the
monomers in the reaction is propylene, any other monomer may be present, because the term
‘comprises’ permits the inclusion of other steps, elements, or materials.”).
Upon carefully reviewing the record on this appeal, we agree with appellants that the
metallocene catalyst compositions of Stehling and Ewen would have been expected by one of
ordinary skill in this art to prepare different ethylene based polymers and interpolymers than the
CG catalyst containing compositions of Stevens ‘815.6 However, the examiner takes the position
that it would have been obvious to one of ordinary skill in this art to prepare blends of the CG
catalyst composition prepared polymers and interpolymers of Stevens ‘815 in order to obtain
improved properties than provided by a single polymer in view of the teachings in Stehling to
prepare blends by a number of different methods for this purpose (answer, page 9, lines 3-7) and
of the teachings of Ewen to use a mixture of catalyst compositions to prepare blends (id., page
10, lines 14-17).
There is no dispute that Stevens ‘815 discloses the same CG catalysts and activating
cocatalysts in CG catalyst systems that are used in the CG catalyst compositions of the appealed
claims (brief, pages 5-6), and indeed, appellants so acknowledge in the specification (pages
9-10).7 Indeed, we find that Stevens ‘815 would have taught one of ordinary skill in this art that
the reactivity of the CG catalyst composition is dependent on the CG catalyst composition as a
whole, including the chemical composition of the CG catalyst and the activating cocatalyst, and
thus there is no indication that the reactivity of the CG catalyst composition is limited to a
difference in the metal employed in the catalyst (e.g., page 2, line 43, to page 5, line 45, and page
6, line 27, to page 8, line 45). We further find that Stevens ‘815 discloses, as noted by appellants
in the brief (pages 6-7), that the CG catalyst compositions disclosed therein “are capable of
preparing novel olefin polymers having previously unknown properties due to their unique facile
abilities to polymerize α-olefins, diolefins, hindered vinylidene aliphatic monomers, vinylidene
6 A discussion of LaPointe and Stevens ‘802 is not necessary to our decision. See In re Kronig,
539 F.2d 1300, 1302-04, 190 USPQ 425, 426-28 (CCPA 1976).
7 We find that the United States patent applications listed as priority documents by Stevens ‘815
are the same applications incorporated by reference in the specification (page 9), and particularly
note, in this respect, application 06/545,403.
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