Appeal No. 2003-0740
Application No. 09/099,188
provide an EVA layer adjacent the polymer mixture of SEBS and PP/PE
for improved impact resistance and flexibility as taught by Mueller
in the process of forming a sealed container as taught by Smith
(id.).
With regard to the rejection over Smith in view of
Fabisiewicz, Carveth, Peterson, Mueller and/or Woo (Answer, page
7), the examiner applies Carveth to show that it was known that a
radio frequency (rf) heatable layer would have been employed when
rf welding was used and that such a layer would have included EVA
(Answer, page 9).2 From these findings, the examiner concludes
that it would have been obvious to employ an EVA layer within the
plastic film of Smith in order to allow one to employ rf welding of
the film in the formation of a peelable seal (Answer, page 11). We
disagree.
It is undisputed that the films of Smith have no EVA layer
(Reply Brief, page 8; Answer, page 5). As correctly argued by
2We recognize that a similar rejection was set forth in
decisions of merits panels of this Board in Appeal No. 1995-0254
and Appeal No. 1998-1967, both found in S.N. 08/033,233.
However, as correctly argued by appellants (Brief, pages 7-10),
the claims in this appeal are directed to a different statutory
class of invention than the previous appeals (process vs.
product), with a different scope of the claimed subject matter
(specific compositions of the films as compared to non-rf
responsive and rf-responsive layers as claimed in the previous
appeals).
5
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