Appeal 2007-2136
Application 10/457,769
describe an ethylene/hexene ratio range. Specifically, Winslow’s
Examples 3 and 4 state that the “ethylene was continuously fed into the
isobutane filled reactor such that it was present in a concentration of
between 10 and 15 mole %, based on the number of moles of isobutane
present in the reactor” and that the “n-Hexene was continuously fed into the
. . . reactor such that its concentration in the isobutane was between 0.5 and
1.5 mole %” (Winslow, col. 12, ll. 14-20). Appellants have not even
attempted to demonstrate that a density greater than 0.92, or any of the other
properties recited in claim 28, would not necessarily be inherent in the
processes recited in Winslow’s Examples 3 and 4.
With regard to claim 41, Appellants additionally argue that Winslow
“does not disclose the use of a modifier having formula (R1O)xSiR24-x” and
that claim 41 “requires that the modifier be added during step c) which is
well after the commencement of polymerization in step a)” (Br. 9).
We are not persuaded by these arguments. Claim 41 states that the
modifier is added during step c. However, claim 41 depends from claim 34,
not claim 40 as indicated in the Appeal Brief (Br. 9). Claim 34 states that
the modifier is optional. Thus, when claim 41 is given its broadest
reasonable interpretation, we agree with the Examiner that “the modifier is
optional in claim 41” (Answer 8). Thus, Winslow need not describe the
modifier or when it is added in order to teach or suggest claim 41.
We conclude that the Examiner has set forth a prima facie case that
claims 28 and 41 are anticipated by or obvious over Winslow, which
Appellants have not rebutted. We therefore affirm the rejection of claims 28
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