Appeal No. 1999-1679 6
Application No. 08/851,742
alpha-olefins, particularly propylene and ethylene. See column 1, lines 11-12. We find
however, that the olefin polymerization catalyst is prepared by contacting the solid reaction
product of a magnesium alkoxide, a titanium tetraalkoxide and a phenolic compound. See
column 2, lines 65-66 column 3,lines 14-19, 34-37, 59-61, column 4, lines 8-10, 21-
23 and 30-33. We conclude therefrom that a phenolic compound is required in the
formation of the polymerization catalyst, which phenolic compound is precluded from the
claimed subject matter. Accordingly, it would have been improper for the person of
ordinary skill in the art to have combined the teachings of Job with Scata to suggest to one
of ordinary skill in the art to homopolymerize ethylene or copolymerize at least 90 mol. %
ethylene using the disclosure of Scata, when the claimed subject matter precludes both the
presence of any electron donor in the initial formation of the catalyst and the presence of a
phenol at any step of the preparation of a catalyst.
Based upon the above findings and analysis, we conclude that the examiner has
failed to establish a prima facie case of obviousness. In re Dembiczak, 175 F.3d 994,
999, 50 USPQ2d 1614, 1617 (Fed. Cir. 1999) ("[T]he best defense against the subtle
but powerful attraction of a hindsight-based obviousness analysis is rigorous application of
the requirement for a showing of the teaching or motivation to combine prior art
references").
The Rejection Over Cuffiana in view of Zucchini, Cowan and Collomb-Ceccarini
The reference to Cuffiana is directed to a catalytic system capable of producing
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