Appeal No. 95-1112
Application 07/969,121
that the prior art taken as a whole would have motivated a person having ordinary skill in the art to create
a stretch film laminate comprised of two contiguous layers of LLDPE and to perforate the
laminate using a hot needle with the reasonable expectation that the welds formed during the perforation
step would also fuse the layers together so that chance of the individual layers of the laminate tearing is
substantially reduced.
For the foregoing reasons, we affirm the rejection of claims 1-4, 14-17, 19 and 20 over the
combined teachings of Parry, Briggs and Parker. However, because our affirmance is based on a different
rationale than that advanced by the examiner, we denominate our affirmance as a new ground of rejection
under 37 CFR § 1.196(b).
The examiner rejected claims 5, 6 and 18 under 35 U.S.C. § 103 over Parry in view of Briggs and
Parker, further in view of Schirmer and Isaka. Appellant did not argue the merits of this rejection, but
indicated that the claims are “believed to be patentably distinguishable over Isaka and Shirmer [sic,
Schirmer] because they depend from allowable independent claims,” namely claims 1 and 14, respectively
(brief: p. 8). In view of our affirmance of the rejection of claims 1 and 14 and in view of the absence of
any arguments on the merits with respect to this rejection, we will sustain the examiner’s rejection. In
addition, we enter the following a new ground of rejection of claims 5, 6 and 18 for the following reasons.
Appellant’s claim 5 requires perforations 1½ mm in size, claim 6 requires approximately 27
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