Appeal 2007-1906
Application 11/127,887
Appellant identified reversible error in this rejection by asserting that
Freedman does not disclose skin layers comprised of a blend of polyethylene
and polypropylene homopolymer? We answer this question in the negative
and affirm the Examiner’s anticipation rejection of representative claim 26
and the rejected claims grouped therewith.
Representative claim 26 employs the transition term “comprising” in
reciting the base layer, first skin layer, and second skin layer as being parts
of the multilayer film. The transition term “comprising” leaves the claim
open to the inclusion of other elements or materials. See In re Baxter,
656 F.2d 679, 686, 210 USPQ 795, 802 (CCPA 1981). Thus, representative
claim 26 is open to the presence of other layers in the multilayer film,
including the presence of other skin layers.
Freedman discloses tie layers (36 and 37, Fig. 3) on opposite outside
surfaces of base layer (32, Fig. 3). Freedman discloses that blends of
propylene homopolymer and polyethylene are utilized in the tie layer (col. 7,
ll. 30-37). Because the tie layers of Freedman are located outside of the base
layer (over and under the base layer), the Examiner has reasonably found
that the tie layers of Freedman correspond to the first and second skin layers
of representative claim 26 (Answer 3, 6 and 7). While Freedman also
discloses, first and second skin layers (34 and 36, Fig. 3) that are located
outside of the tie layers, these outer skin layers do not take away from
Freedman’s disclosure of the tie layers, which are, in effect, inner skin layers
that tie the outer skin layers (34 and 36) to the base layer (32).
Appellant’s argument that the tie layers of Freedman are separate or
distinct from the skin layers thereof and could not be considered as the here
claimed skin layers is not persuasive. This is because representative claim
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