Appeal No. 2004-2292
Application 09/747,537
listed “polyolefins, vinylidene chloride copolymers , polyesters, polyamides and/or
polycarbonates, as generically described above.”
I note in this respect that, as appellant Migliorini points out in his declaration (¶¶
5-7), polyolefin layers in films are known in the art to adhere to each other, and indeed,
neither Schloegl nor Peiffer discloses that the polyolefin films disclosed therein exhibit
low adhesion between the polyolefin layers thereof, regardless of the nature of the
polyolefin(s) in the layer. The examiner’s argument to the contrary in the answer (pages
16-17) is based on the bare statement in the advisory action mailed March 9, 2004, that
“the prior art indicates that oriented isotactic polypropylene films are known to exhibit
poor adhesion to heat sealing layers, such as polyethylene compositions, due to their non-
polar character and high degree of orientation” (page 2). Indeed, as appellants point out in
reply (reply brief, pages 1-2), the examiner has not established that this condition exists
with the films of Schloegl and Peiffer, and has not cited any prior art in support of the
position.
Therefore, I find that the record before this panel does not contain substantial
evidence supporting the position of the examiner in the grounds of rejection based on the
combined teachings of Schloegl and Blemberg and the combined teachings of Peiffer and
Blemberg, and thus, I am of the opinion that the examiner has not made out a prima facie
case of obviousness within the meaning of § 103(a) in these rejections.
However, I find that the combined teachings of Schloegl and Blemberg and the
combined teachings of Peiffer and Blemberg nonetheless establish that the claims against
which the examiner applied this prior art establish a prima facie case of obviousness
within the meaning of § 103(a). Indeed, Blemberg would have disclosed to one of
ordinary skill
in this art multi-layer polymeric shrink film containing one or more “adhesive or tie” core
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