Appeal No. 1999-2661
Application 08/430,632
We have carefully considered all of appellant’s arguments. We, like the examiner, do not
find basis in the record for the distinction that appellant would draw between a “sheet” and a
“film” (brief, pages 12, 13 and 15). We also agree with the examiner (answer, page 9) that the
polymeric material in layer 4 of Van Iseghem is a “sealant layer” as required in appealed claim
13, particularly since appealed claim 13 specified that such layer can be a “propylene copolymer
and appellant presents no analysis in support of his position (brief, page 13). Finally, we are not
convinced by appellant’s arguments with respect to whether one of ordinary skill in this art
would have been motivated to substitute what appellant describes as a comparable or infer barrier
material “for one already offered in” Van Iseghem (id., pages 14-15). As the examiner points
out, the hydrocarbon resin blended with polypropylene of Bossaert is used for layer 3 of the
multi-layer film of Van Iseghem and not as a replacement for the inner barrier layer 1 thereof.
Indeed, one of ordinary skill in this art would have found in the combined teachings of the
references the motivation to use the materials of Bossaert in the multi-layer film of Van Iseghem
in the reasonable expectation of obtaining multi-layer films that have the same or similar
properties as taught by Van Iseghem.
Accordingly, based on our consideration of the totality of the record before us, we have
weighed the evidence of obviousness found in the combined teachings of Van Iseghem and
Bossaert with appellants’ countervailing evidence of and argument for nonobviousness and
conclude that the claimed invention encompassed by appealed claims 11 through 13 would have
been obvious as a matter of law under 35 U.S.C. § 103(a).
We cannot, however, sustain the ground of rejection of appealed claim 20 under § 103(a)
over Van Iseghem taken in view of Bossaert. The examiner states that “the films taught by [Van]
Iseghem are thermoformed they are stretched to some degree” and thus “would have some degree
of shrinkability when heated” (answer, page 5). Appellant points out that the films of Bossaert
are “heat set to improve . . . dimensional stability” (brief, page 16). We find that Van Iseghem
teaches that the film disclosed therein will retain its shape and not sag or at least not sag to a
detrimental degree (col. 2, lines 5-12). Accordingly, on this record, we find that the examiner
has not established that, prima facie, the film of Van Iseghem is heat shrinkable, and thus we
reverse this ground of rejection.
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