Appeal No. 2001-1849
Application 09/138,376
lines 51-55). No halopolymer layer is disclosed.
The examiner argues that polyalkylene naphthalate polyesters
were well known in the art to have excellent mechanical and
barrier properties, and that “it has been held to be within the
general skill of a worker in the art to select a known material
on the basis of its suitability for the intended use as a matter
of obvious design choice” (answer, page 5). In support of this
argument the examiner relies upon In re Leshin, 277 F.2d 197, 125
USPQ 416 (CCPA 1960). In that case the court held that it would
have been obvious to one of ordinary skill in the art to select
known plastics to make containers which were known to be made of
plastic, the selection being based upon the intended use of the
containers. See Leshin, 277 F.2d at 199, 125 USPQ at 417-18.
In Leshin the suitability of each plastic for making a
container for an intended use was considered by the court to be
apparent to those of ordinary skill in the art. In the present
case, for the substitution of the naphthalene-containing polymers
of Kemski or Nägeli for Kim’s polyesters to have been obvious to
one of ordinary skill in the art, such a person would have had to
consider the naphthalene-containing polymers to have the good
strength in the final film product required by Kim (col. 3,
lines 7-10) and to be suitable for being bonded to a
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