Appeal No. 2004-2292
Application 09/747,537
or base layers comprising at least polypropylene between side layers, one of which side
layers can contain at least some amount of low density polyethylene, and/or propylene
ethylene copolymers along with any other “polyolefins, vinylidene chloride copolymers,
polyesters, polyamides and/or polycarbonates,” and the other side layer contains any
manner of “vinylidene chloride copolymers, polyesters, polyamides and/or
polycarbonates” (e.g., col. 2, l. 32, to col. 3, l. 2). These films differ from the claimed
invention encompassed by appealed claim 1 as I have interpreted this claim above, solely
in the absence of hydrocarbon resins in the base or core layer. I find in these respects that
appellants acknowledge in the written description in their specification that
“[h]ydrocarbon resins are well known processing aids . . . [and] for enhancing certain
physical properties such as stiffness and gloss” (page 1, l. 16-18), which knowledge in the
prior art is also established by the use of hydrocarbon resins in the core or base layer by
Schloegl (e.g., col. 3, ll. 22-34) and Peiffer (e.g., col. 5, ll. 8-61).
Accordingly, I am of the opinion that the record contains substantial evidence
supporting the proposition that one of ordinary skill in this art would have employed
hydrocarbon resins in the adhesive or tie core or base layer(s) of the films disclosed by
Blemberg in the reasonable expectation of obtaining the processing and property benefits
known in the art to be impart by such materials as acknowledged by appellants and
established by Schloegl and Peiffer. See In re Dow Chem. Co., 837 F.2d 469, 473,
5 USPQ2d 1529, 1531 (Fed. Cir. 1988) (“The consistent criterion for determination of
obviousness is whether the prior art would have suggested to one of ordinary skill in the
art that [the claimed process] should be carried out and would have a reasonable likelihood
of success viewed in light of the prior art. [Citations omitted] Both the suggestion and the
expectation of success must be founded in the prior art, not in the applicant’s disclosure.”);
In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (“It is prima
facie obvious to combine two compositions each of which is taught by the prior art to be
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