Appeal No. 1997-3099
Application 08/191,886
“about 0.05 to less than 0.10 mils” or “less than 0.10 mils” as presently claimed. While
Newsome characterizes the corresponding core or first layer as having a preferred
thickness of 0.15 to 0.30 mils for a 2.25 film (col. 9, lines 46-48), we find no explicit
suggestion in the reference to use a core layer of less than 0.15 mils. Both Newsome
(Abstract) and appellants (Specification, page 10) would agree that the core layer serves
as the gaseous barrier layer. However, we would also agree with appellants that
Newsome at least reasonably suggests a desire to avoid “reducing the effective oxygen
barrier properties of the EVOH resin significantly.” (Col. 6, lines 28-32) (Reply Brief, page
17). Thus, the reduction in thickness of the core layer, proposed by the examiner, would
appear to be contraindicated.
Even if we assume that the examiner is correct that (Answer, page 6) "in the
packaging art, it is known to vary and adjust the thickness of the layers to optimize the
desired properties, such as oxygen permeability," it still remains that Newsome has
indicated a desire to maintain an effective oxygen barrier for the core layer and a reduction
in the thickness below that which was explicitly described would appear to affect the
oxygen permeability in a manner which Newsome teaches as being undesirable. Even if
the overall thickness of the film is reduced, Newsome would appear to suggest the need to
maintain the thickness of the core layer in a range to maintain the oxygen barrier. It can not
be said that Newsome suggests that the oxygen barrier characteristic can be maintained
using a lower thickness for the core layer.
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