Appeal No. 2001-1884
Application No. 08/718,692
appellants do not dispute (Answer, page 8), that:
Bradley discloses a method for making laminates
suitable for use in packaging comprising: providing a
polyethylene film; providing a polyester film; exposing the
films to gas discharge plasma while feeding the films from
supply rollers in order to activate the films; and then
bonding the films by compressing them together between two
rollers, one of which is heated (col. 2, line 30 - col. 7,
line 42).
The examiner acknowledges that the polyethylene film
employed in Bradley is not defined by the claimed product-by-
process limitation, i.e., “a layer of polyethylene extruded at a
temperature Te above a breakpoint temperature which is higher
than a normal melting temperature Tm of the extruded
polyethylene.” See the Answer, page 4. Such limitation,
however, does not impart patentability to the claimed method for
forming a laminate material because the appellants have not
demonstrated that the polyethylene film defined by the claimed
product-by-process limitation is patentably different from that
employed in Bradley. See In re Thorpe, 777 F.2d 695, 697, 227
USPQ 964, 966 (Fed. Cir. 1985)(“[i]f the product in a product-by-
process claim is the same as or obvious from a product of the
prior art, the claim is unpatentable even though the prior art
subject to a common ground of rejection as representative of all
claims in that group and to decide the appeal of that rejection
based solely on the selected representative claim”).
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