Appeal No. 2006-0646
Application 10/465,194
n-hexane extractable of from 0 to 1.6 weight percent, and a melt flow ratio of from about 26 to
28. There is no limitation with respect to the method of preparing the copolymer or the testing
methods used to determine the specified properties. See, e.g., In re Am. Acad. of Sci. Tech. Ctr.,
367 F.3d 1359, 1364, 70 USPQ2d 1827, 1830 (Fed. Cir. 2004); 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 examiner relies on the disclosure in Lustig of a “low density polyethylene (LLDPE),
film C” further identified in Lustig Table 3 as a biaxially stretched monolayer film which has the
here relevant physical properties of density of 0.918 g/cm3, measured according to ASTM D-
1505; melt index of 0.65 g/10 minutes, measured according to ASTM D-1238; and melting
point of 118°C, which is the melting point per se and not the differential scanning calorimetry
melt transition temperature (col. 9, ll. 39-49, and col. 11, l. 67-68).
“[T]he examiner believes that the disclosed density [in Lustig of 0.918 g/cc which is] . . .
a 0.1% difference as compared to the claimed density . . . [is] experimental error associated with
the method of determining the density of polyolefins,” and that the designation “LLDPE”
indicates that the copolymer contains at least 50 weight percent ethylene, further relying in this
respect, on the disclosure of an “ethylene content from 35 to 94 mole percent” for the very low
density polyethylene copolymers (VLDPE) specifically described by Lustig at col. 8, ll. 36-56
(answer, pages 4 and 6). The examiner finds that the disclosure of “a melt flow index of from 22
to about 40 as being suitable for film application” for VLDPE specifically described by Lustig ,
pointing to col. 9, ll. 11-12, provides “a reasonable basis to believe that the melt flow rate
properties of the LLDPE [C] should be within the range of from about 22 to about 40 in order to
make film,” which in view of the alleged substantially identical composition and properties, “is
inherently possessed” by LLDPE C (answer, pages 4 and 6).
The examiner further relies on Smith to evince the knowledge in this art that LLDPE has
densities in the range of 0.915 to .940 g/cm3, and that “[t]he alpha-olefins utilized is usually
1-butene, 1-hexene, or 1-octene and Ziegler-type catalysts are usually employed (although
Phillips catalysts are also used to produce LLDPE having densities at the higher end of the
range)” (col. 2, ll. 18-27), alleging that “in view of the small number of choices (or species) as
presented in [Lustig], it would not be difficult for one of ordinary skill in the art to obtain” the
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