Appeal No. 2003-0358
Application 08/982,958
strength adhering the two portions of the first film, such that upon delamination of the first film
of the laminate, the non-perforated gas-permeable portion will remain bonded to the perforated
gas-permeable film. The claimed laminate encompassed by appealed independent claim 32
similarly comprises at least two films and a printed image label trapped therebetween, but differs
from appealed claim 1 as there is no requirement for either the gas-permeable portion of the
substantially gas-impermeable multilayer film or the gas-permeable film with respect to
perforation, which can be the agent for achieving gas-permeability (specification, page 10, lines
21-23).3 Appealed claims 1 and 32 also encompass laminates which can have additional film
layers because of the transitional term “comprising.” See In re Baxter, 656 F.2d 679, 686-87,
210 USPQ 795, 802-03 (CCPA 1981) (“As long as one of the monomers in the reaction is
propylene, any other monomer may be present, because the term ‘comprises’ permits the
inclusion of other steps, elements, or materials.”).
The threshold issue in this appeal is whether Noel teaches or suggests each and every
element of the claimed laminate encompassed by appealed claims 1 and 32 arranged as required
by these claims as we have interpreted them above. In response to appellant’s arguments in the
brief, the examiner relies on Noel FIG. 2, in which web 26 is a multilayer film that “delaminates
between a gas impermeable section and gas permeable section (see column 5, lines 47+),” and
Noel FIG. 3, which has multilayer web 66, along with the teachings of Noel that “the gas
permeable film may be one or more layers (col 10, lines 3-5)” (answer, pages 6-8; see also pages
3-4). Appellant points out that web 26 consists of a delaminatable multilayer film which is gas-
impermeable and that web 66 is a two film laminate wherein the films are separable and not
delaminatable (reply brief, page 2). Appellant submits that the examiner’s listing of similarities
between the claimed laminate and the film disclosed by Noel fails to identify the film on which
the similarities are based, and thus the examiner has not identified the disclosure in Noel which
teaches or suggests the modifications of the webs of Noel FIGs. 2 and 3 to form the claimed
In re Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970); compare Ex parte
Raske, 28 USPQ2d 1304, 1304-05 (Bd. Pat. App. & Int. 1993).
3 The trapped printed image or label will inherently remain trapped upon the delamination of the
first film because the gas-permeable portion of that film remains bonded to the gas-permeable
film in both appealed claims 1 and 32.
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