Appeal No. 2003-0740
Application No. 09/099,188
appellants (Brief, page 12), Smith requires that the layer adjacent
to the inner, peelable seal layer is “an outer higher temperature
polymer layer 46" such as a high ethylene content random copolymer
(col. 5, ll. 29-50; see Figure 3). As also correctly argued by
appellants, the “outer higher temperature layer” has a higher
melting point than the inner, sealable layer (Brief, page 12; see
Smith, col. 7, ll. 54-59). Appellants have submitted uncontested
evidence that the melting point of EVA is considerably lower than
the melting points of possible inner, sealable layers of Smith
(id.). Accordingly, we agree with appellants that the
preponderance of evidence shows that substitution of EVA for the
“outer high temperature layer” of Smith would not have been
suggested to one of ordinary skill in this art, whether the
examiner relies upon Mueller or Carveth as support for the proposed
modification.3 Since the examiner does not rely upon Fabisiewicz,
3We also note that Mueller teaches EVA as an “interior
layer” of the film, not as an “outer layer,” the seals of Mueller
are intended to be permanent, and there is no suggestion in the
combination of references (Mueller and Smith) that the increased
impact strength shown by Mueller would have been desired by Smith
(see Mueller, col. 2, ll. 55-67; Figure 1; col. 5, ll. 47-49; and
col. 9, ll. 21-35). The only disclosure of EVA found in Carveth
is the teaching that the container may be made from a variety of
materials including EVA (col. 10, ll. 38-48). In view of our
opinion above, further discussion of these issues is unnecessary
to our decision.
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