Appeal No. 2004-2210 Page 2
Application No. 09/374,117
INTRODUCTION
The claims are directed to a breathable film having at least three layers. Claim 26 is
illustrative:
26. A multilayer breathable film having the combination of properties of:
(i) providing a barrier to microorganisms; and
(ii) providing a barrier to blood and bodily fluids;
said breathable film comprising at least a three-layer film having as a minimum the following
structure:
C:D:C;
where C comprises an outer monolithic layer containing a hydrophilic polymeric resin capable of
absorbing and desorbing moisture and providing a barrier to water and microorganisms, said C
layer being substantially free of particulate filler; and, D comprises a microporous adhesive core
layer for bonding said C layers together, wherein said C layer substantially prevents the buildup
of particulate filler material on a die during formation of said multilayer breathable film, and
wherein said microporous adhesive core layer comprises particulate filler having an average
particle size between about .8 microns and about 3 microns, where upon stretching the
microporous adhesive the core layer [sic] has microvoids in a range from about 27.6% to about
42%, said microporous adhesive core layer being constructed and arranged to provide the
passage of gaseous water but substantially prevent the passage of liquid water.
Claims 26-29 and 32 stand rejected under 35 U.S.C. § 102(e) as being anticipated by U.S.
Patent 6,075,179 issued to McCormack et al. (McCormack).1
Improper speculation and assumptions with regard to claim scope would be required in
order to determine whether anticipation was established by the Examiner. Accordingly, we
reverse the Examiner’s § 102 rejection on procedural grounds and, pursuant to our authority
1The Patent has an effective filing date of December 20, 1994.
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