Appeal 2007-2656
Application 11/133,685
fully set forth in the Briefs? We answer this question in the negative, and
we affirm the Examiner’s rejection on this record.
With regard to Appellants’ argument that the method of preparation of
the claimed catalyst differs because Shamshoum discloses solubilizing
reaction product A before the first titanating agent treatment step, we
observe that representative claim 5 describes the catalyst made in a product-
by-process format without limiting the method of preparation to the
exclusion of other steps during the catalyst preparation. In this regard,
Appellants employ the open transitional word “comprising” in setting forth
the method by which the claim 5 product is produced. See Exxon Chemical
Patents Inc. v. Lubrizol Corp., 64 F.3d 1553, 1555, 35 USPQ2d 1801, 1802
(Fed. Cir. 1995); In re Baxter, 656 F.2d 679, 686-87, 210 USPQ 795, 802-03
(CCPA 1981). Additionally, we note that Appellants disclose that a solvent
is used for combination with the halogenation product “A” prior to the first
halogenation/titanation treatment step in the disclosed process of making the
catalyst (Specification ¶¶ 0038 and 0039).
Moreover, even if claim 5 were considered to exclude such a
solubilizing step (which it does not), Appellants have not persuasively
argued, much less substantiated with evidence, how the claimed catalyst
product differs from the catalyst of Shamshoum, which latter catalyst is
made with a solubilizing step.
Appellants’ assertion that the organometallic preactivating agent
contacting step of the catalyst preparation method differentiates the claimed
catalyst from the catalyst described in Shamshoum is not persuasive. In
particular, Shamshoum describes the use of an organoaluminum co-catalyst,
5
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