Appeal No. 96-3690
Application 08/234,516
[w]e have discovered a comparative few compounds [beta-pinene and d-
limonene] which are effective in reducing the migration of aromatic oils when
used in an admixture with polypropylene polymers. Oriented films made from
these blends of polymers effectively prevent, for example, cigarette packages
that are sold in gasoline station displays from picking up hydrocarbon odors,
lemon-flavored cookies from losing their fresh-baked, lemon flavor and scent,
etc.
Accordingly, we do not find appellants’ evidence as per Examples 1-3 to be commensurate
in scope with the claims. See In re Grasselli, 713 F.2d 731, 743, 218 USPQ 769, 778 (Fed.
Cir. 1983); In re Clemens, 622 F.2d 1029, 1035, 206 USPQ 289, 296 (CCPA 1980).
Appellants* claimed invention encompasses odors and flavors derived from any aromatic oil
and possibly other compounds, not just toluene. See In re Lindner, 457 F.2d 506, 508, 173
USPQ 356, 358 (CCPA 1972); In re Susi, 440 F.2d 442, 445-446, 169 USPQ 423, 426
(CCPA 1971).
Appellants further argue that the prior art relied upon by the examiner fails to disclose
or suggest a process for using the specific terpene’s specified in claims 17 and 19, namely,
polymerized d-limonene and a mixture of polymerized d-limonene and beta-pinene, for
preventing the transmission of odors and unwanted flavors. The examiner stated that Isaka
does not teach the use of d-limonene and relies on In re Durden, 763 F.2d 1406, 226 USPQ
359 (Fed. Cir. 1985) and Ex parte Kifer, 5 USPQ2d 1904 (Bd. Pat. App. & Int. 1987) to
support his position of obviousness. We disagree with the examiner’s application of Durden
and Kifer. See In re Ochiai, 71 F.3d 1565, 37 USPQ2d 1127 (Fed. Cir. 1995). To the
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