Appeal No. 1996-1792 Page 5
Application No. 08/220,244
material or a copolymer thereof" and at least one
nonpolyisophthalate layer which may comprise "polyterphthalate
polyester material or a copolymer thereof" (column 2, lines 62-
66 and column 5, lines 10-21). Smith teaches the layers may be
colored (column 5, lines 21-25 and column 10, line 43 through
column 11, line 3). The bottle of Smith allegedly has good
permeability resistance to oxygen and carbon dioxide.
Darr discloses a multi-layer plastic container including:
(1) an inside layer of virgin plastic; (2) an inner
intermediate layer of recycled plastic of a relatively dark
color, such as green; (3) an outer intermediate layer of
plastic that may include titanium dioxide so as to hide (be
opaque to) the darker color of the inner intermediate layer;
and (4) an outer pigmented layer of a lighter color, such as
orange. Darr does not disclose that the inner intermediate
layer is opaque to light transmission and colored black.
Regarding the § 103 rejection over Smith alone, it is
basically the examiner's position that it would have been
obvious to select the colorants of multiple layers in Smith
"for a desired effect" so as to arrive at the claimed invention
"[s]ince changing color in an article does not impart
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