Appeal No. 2002-2261
Application No. 09/568,111
discloses that a hydrophobically modified amylose-containing
starch base coated paper that is further extruded with polyolefin
impedes the permeability of oxygen" (sentence bridging pages 4
and 5 of Brief), appellants have not addressed the examiner's
citation of Lacz '450 which teaches a preference for high amylose
starch containing more than 50 weight percent amylose (see column
3, lines 25-28). Also, as explained above, Lacz '450 attributes
oxygen impermeability to the coating of amylose starch, not the
extruded polyolefin. As a result, we cannot subscribe to
appellants' position that "the Examiner has failed to establish a
prima facie case of obviousness based on the combination of Lacz
'450 and Lacz '473" (page 5 of Brief, second paragraph, emphasis
added).
Appellants also rely upon the asserted unexpected superior
Gurley porosity demonstrated in the present specification,
Table 1, samples 1 and 4. However, appellants have not
shouldered their initial burden of establishing that the
specification results would be considered truly unexpected by one
of ordinary skill in the art, especially in light of the
disclosure in Lacz '450 that the claimed high amylose starch and
polyvinyl alcohol provide increased oxygen impermeability. In re
Merck & Co., 800 F.2d 1091, 1099, 231 USPQ 375, 381 (Fed. Cir.
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