Appeal No. 1999-2506
Application No. 08/545,254
claims a diphenylmethylene bridging moiety. The disclosure in the paragraph bridging pages
2 and 3 of the specification and claim 1 state that, “R’ is a substituted or unsubstituted lower
alkylene group, a dialkylsilanediyl group, a dialkylgermandiyl group, an alkylphosphinediyl
group, or an alkylimino group.” There is no exemplification of a diphenylmethylene group.
Moreover there is no disclosure of a
diphenylmethylene(cyclopentadienyl)(fluorenyl)zirconium dichloride. Accordingly the
Declaration fails to compare the present invention with the closest prior art of record, i.e., a
dialkylsilanediyl bridging moiety or the exemplified isopropylidene bridging moiety of Example
4. Furthermore, it fails to compare the present invention with any metallocene compound
specifically disclosed by Hasegawa. See In re Baxter Travenol Labs., 952 F.2d 388, 392, 21
USPQ2d 1281, 1285 (Fed. Cir. 1991); In re De Blauwe, 736 F.2d 699, 705, 222 USPQ
191, 196 (Fed. Cir. 1984).
We furthermore adopt the Examiner’s findings and conclusions regarding the
Declaration under 37 CFR 1.132 as not being commensurate in scope with the claimed
subject matter. See Answer, last paragraph, page 6 through page 8. See In re Grasselli, 713
F.2d 731, 743, 218 USPQ 769, 778 (Fed. Cir. 1983); In re Tiffin, 448 F.2d 791, 792,
171 USPQ 294, 294 (CCPA 1971). It is well settled that "objective evidence of
nonobviousness must be commensurate in scope with the claims." In re Lindner, 457 F.2d
506, 508, 173 USPQ 356, 358 (CCPA 1972); In re Dill, 604 F.2d 1356, 1361, 202
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