Appeal No. 96-3690
Application 08/234,516
1385, 213 USPQ 441, 442 (CCPA 1982). While some picking and choosing may be entirely
proper in establishing obviousness, it has no place in making an anticipation rejection under
35 U.S.C. § 102. In re Arkley, 455 F.2d 586, 587-88, 172 USPQ 524, 526 (CCPA 1972).
For the foregoing reasons, we reverse the examiner’s rejection of claims 1-5 under 35 U.S.C.
§ 102(b) as being anticipated by Isaka.
OBVIOUSNESS OVER ISAKA
The examiner rejected claims 14-19 under 35 U.S.C. § 103 as being unpatentable over
Isaka. Claim 14 is directed to a method of sealing a product with a packaging material
comprising an oriented film of polypropylene and a polymerized terpene resin of d-limonene
or beta-pinene or mixtures thereof. This method is taught by Isaka who suggests sealing
products with a film of packaging material comprising a base layer of oriented polyethylene
to which is blended a low molecular weight thermoplastic resin such as polymers of alpha-
pinene, beta-pinene and limonene (col. 1, lines 11-12; col. 3, lines 5-30; col. 4, lines 25-29).
In addition to having components similar to appellants’ claimed composition, Isaka discloses
that the amount of polyterpene in the polypropylene composition can range from 3 to 25% by
weight. Appellants claim that the amount of terpene must be in an amount sufficient to act as
an effective odor and flavor barrier when blended with polypropylene. According to page 3
of appellants’ specification, this amount would be in the range of 1-20% by weight. This range
substantially overlaps the range disclosed by Isaka. Thus, it would appear from these facts
that the claimed oriented polypropelyene film is substantially similar to that suggested by Isaka
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