Appeal 2007-2136
Application 10/457,769
hydrogen [and] a first olefin monomer . . . to allow additional
polymerization” (id. at 4).
The Examiner acknowledges that “Winslow’s examples do not
explicitly disclose all the claimed limitations such as density, melt index and
[long chain branching index],” but argues that the copolymers resulting from
the disclosed methods would be expected to inherently have these properties
(id. at 4-5). In addition, the Examiner argues that, “[e]ven if the claimed
properties are not inherent in the polymers of the prior art examples, it
would still have been obvious to a skilled artisan to arrive at the claimed
subject matter” (id. at 5). In particular, relying on In re Fitzgerald, 619 F.2d
67, 205 USPQ 594 (CCPA 1980), and In re Fessmann, 489 F.2d 742, 180
USPQ 324 (CCPA 1974), the Examiner argues that, “[o]nce a product
appearing to be substantially identical is found and a 35 USC 102/103
rejection made, the burden of proof is shifted to the applicant to show an
unobvious difference” (id.).
We conclude that the Examiner has set forth a prima facie case that
claim 28 is either anticipated by or obvious over Winslow. Winslow
describes a catalyst system for the polymerization of olefins, the catalyst
system comprising a supported catalyst component containing vanadium, an
organoaluminum compound cocatalyst, and a halocarbon compound
promoter (Winslow, col. 4, l. 57, to col. 5, l. 9, and Abstract).
Winslow includes two examples, Examples 3 and 4, in which its
catalyst systems are used to copolymerize ethylene and n-hexene (Winslow,
col. 12, ll. 1-59). During operation of the isobutane-filled polymerization
6
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