Appeal 2007-0061
Application 09/531,978
(Nagura, p. 3, ll. 1-7). Oriented film 1 is ordinarily biaxially oriented
(Nagura, p. 3, ll. 14-15). Oriented polyolefin film 2 is at least uniaxially, but
preferably, biaxially oriented (Nagura, p. 4, ll. 20-21). The multilayer film
containing films 1 and 2 preferably has a tensile modulus (Young’s
modulus) of 300 kg/mm2 or less, more preferably 200 kg/mm2 (Nagura, p. 5,
ll. 5-17), but again, no particular limits are set on the modulus in the
lengthwise and widthwise directions. While the examples describe
multilayer film biaxially oriented more lengthwise than widthwise, they are
only examples.
Nagura does not place any particular significance on the respective
levels of orientation and tensile modulus between the lengthwise and
widthwise directions (MD and CD). That biaxial orientation was known in
the art to increase film strength is not disputed (Answer 4; Br. and Reply Br.
in their entirety; see also Specification 6:20-24). Biaxially orienting to
obtain predictable properties would have been obvious to one of ordinary
skill in the art. Cf. Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1368, 82
USPQ2d 1321, 1335-36 (Fed. Cir. 2007) (discovery of an optimum value of
a variable in a known process is usually obvious.) and In re Aller, 220 F.2d
454, 456, 105 USPQ 233, 235 (CCPA 1955) (“[I]t is not inventive to
discover the optimum or workable ranges by routine experimentation.”).
This is the kind of situation that requires Appellants to show secondary
considerations such as unexpected results or criticality to overcome the
prima facie case. See In re Huang, 100 F.3d 135, 139, 40 USPQ2d 1685,
1688 (Fed. Cir. 1996) (“This court and its predecessors have long held,
however, that even though applicant's modification results in great
improvement and utility over the prior art, it may still not be patentable if the
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