Appeal No. 2003-0501
Application No. 09/110,455
Brief was directed to the examiner's final rejection of claim 8,
the examiner's omission of claim 8 in the statement of the
rejection was harmless error. As a result, we hereby modify our
decision to the extent that we affirm the examiner's final
rejection of claims 1-9, 11 and 13-18 under 35 U.S.C. § 103 and
under obviousness-type double patenting.
Regarding appellants' reliance on Samples 5-7 of the
specification as evidence of nonobviousness, we remain of the
opinion that appellants have not established on this record that
the comparative data would have been truly unexpected by one of
ordinary skill in the art in light of Wilhoit's teaching that
films made from the claimed blends have improved heat sealing and
puncture resistance properties. While appellants draw attention
to specification Samples 5-7, comparative samples 6 and 7, which
are directed to different patch materials, are not evidence of
what one of ordinary skill in the art would have expected when
performing the obvious step of fashioning a patch from the same
blend as Wilhoit's film. As stated in our decision at page 5,
inasmuch as appellants acknowledge in the specification that it
was known in the art to match the shrink properties of the patch
to the shrink properties of the bag, we agree with the examiner
that it would have been obvious for one of ordinary skill in the
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