Appeal No. 94-2995
Application 07/976,827
the here claimed vinylidene chloride copolymer. More
specifically, while it is possible that the applied prior art
would have suggested a blend of polyvinyl alcohol and polyvinyl
chloride, this prior art contains no teaching or suggestion
concerning a blend of polyvinyl alcohol and polyvinylidene
chloride. According to the examiner, an artisan with ordinary
skill would have found it obvious to, “if desired, further modify
the substituted Scopp adhesive composition [i.e., polyvinyl
alcohol and polyvinyl chloride] through a substitution of
<equivalents’ i.e., polyvinylidene chloride for the substituted
polyvinyl chloride composition, thereby forming the claimed genus
of laminated films, the resulting film further also possessing
the clearly inherent claimed property of being <effective to
reduce transmission of [said] oxygen and [said] moisture’”. The
examiner’s position is not well taken.
On the record before us, the examiner has supplied no
evidence that polyvinylidene chloride and polyvinyl chloride are
“equivalents” in the adhesive blend environment under
consideration. In addition, the applied prior is silent2
regarding the here claimed feature of reducing transmission of
2 Moreover, equivalency is not the test for obviousness under 35 USC
§ 103. See, for example, In re Flint, 330 F.2d 363, 367, 141 USPQ 299, 302 (CCPA
1964) and In re Scott, 323 F.2d 1016, 1019, 139 USPQ 297, 299 (CCPA 1963).
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