Appeal No. 2004-2210 Page 9
Application No. 09/374,117
examiner must provide a reasonable basis for a conclusion of inherency). In regard to Examples
1 and 2, the Examiner should note that while those examples describe skin layers containing
diatomaceous earth, a material described as a filler in col. 3, ll. 55-63 of McCormack, the amount
of diatomaceous earth is small, i.e., on the order of 4% for Example 1 and 3% for Example 2.4
The Examiner should consider whether the films of Examples 1 and 2 have skin layers
“substantially free of particulate filler.”
The Examiner may wish to consider adding a rejection under 35 U.S.C. § 103(a). The
broad disclosure of McCormack provides guidance as to how to select various polymers, fillers,
and processing parameters to obtain a three layer breathable film.
4The skin layer composition of Example 1 includes 20% Ampacet 10115 anti-block of which 20% is
diatomaceous earth. Therefore, the overall skin layer composition contains 4% diatomaceous earth. The skin layer
composition of Example 2 includes 15% Ampacet 10115 and, therefore, the overall skin layer composition contains
3% diatomaceous earth.
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