Appeal 2007-1906
Application 11/127,887
The Examiner has essentially found that Freedman describes that the
core layer can include a blend of one or more propylene copolymers and a
propylene homopolymer, wherein the propylene copolymer blend includes
ethylene as a co-monomer in one of the propylene copolymers and another
higher alpha olefin monomer in another propylene copolymer; hence
describing an embodiment that representative claim 1 reads on and is
anticipated by (Final Office Action 3; Answer 3, 5, and 6; Freedman, col. 3,
ll. 48-50; col. 4, ll. 21-31 and 34-39, and Table II).1
Appellant does not dispute that their claimed polyethylene component
is inclusive of a copolymer of ethylene, including and ethylene/propylene
copolymer. Rather, Appellant maintains that the propylene and ethylene
copolymer of Freedman is not an ethylene copolymer, as required to meet
the polyethylene component (B) of representative claim 1. In this regard,
Appellant argues that:
Freedman (as well as Appellant) has defined propylene
copolymers as generally comprising copolymers of propylene
and up to about 40% by weight of at least one alpha-olefin
selected from ethylene and alpha olefins containing from 4 to
about 8 carbon atoms. (Column 4, lines 20-25). Freedman
refers to these copolymers which contain a major amount of
propylene as being "propylene copolymers", not "ethylene
copolymers".
1 See In re Schaumann, 572 F.2d 312, 316-17, 197 USPQ 5, 9 (CCPA 1978)
(prior art preferred genus which disclosed limited species, inclusive of
claimed species, constituted description of the claimed species within the
meaning of 35 U.S.C. §102(b)); In re Petering, 301 F.2d 676, 681,
133 USPQ 275, 280 (CCPA 1962) (prior art genus containing only 20
compounds inherently anticipated a claimed species within the genus
because "one skilled in [the] art would . . . envisage each member" of the
genus).
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