Appeal No. 2006-0317
Application 10/192,106
a substrate and a cavitated skin layer on a surface of said substrate, said cavitated skin
layer comprising a cold seal adhesive coating on at least part of an outer surface of said cavitated
layer,
wherein said substrate comprises a core layer and a first tie layer, said first tie layer being
positioned between said core layer and said cavitated skin layer, said first tie layer being
cavitated,
wherein said cavitated skin layer and said first tie layer each comprises a cavitating
agent, and at least one of said cavitated skin layer and said first tie layer comprises from about
25 percent by weight to about 50 percent by weight, based on the total weight of the cavitated
skin layer and first tie layer, respectively.
The references relied on by the examiner are:
Pike et al. (Pike) 4,859,521 Aug. 22, 1989
Liu et al. (Liu) 4,931,327 Jun. 5, 1990
Agent et al. (Agent) 6,228,505 May 8, 2001
(filed Aug. 11, 1998)
The examiner has rejected appealed claims 1 through 15, 21 and 22 under 35 U.S.C.
§ 103(a) as being unpatentable over Liu in view of Agent and evidenced by Pike (answer, pages
3-6).
Appellants’ arguments are directed to independent claims 1, 4 and 6. Thus, we decide
this appeal based on appealed claims 1, 4 and 6 as representative of the ground of rejection.
37 CFR § 41.37(c)(1)(vii) (September 2004).1
We affirm the ground of rejection of claims 1 through 15, 21 and 22 because we agree
with the examiner's conclusion that the claimed subject matter would have been obvious over the
applied references. However, we designate our affirmance as involving a new ground of
rejection pursuant to 37 CFR § 41.50(b) (2005) because we rely on the applied references in a
manner materially different from that of the examiner, as to which appellants have not had an
opportunity to respond. See generally, In re Eynde, 480 F.2d 1364, 1370-71, 178 USPQ 470,
474-75 (CCPA 1973); Manual of Patent Examining Procedure § 1213.02 (8th ed., Rev. 3,
August 2005).
1 Appellants take issue with the examiner’s requirement for restriction (brief, pages 14-15).
This matter is petitionable and is not before us. 37 CFR §§ 1.143 and 1.144 (2004). See In re
Watkinson, 900 F.2d 230, 233, 14 USPQ2d 1407, 1409-10 (Fed. Cir. 1990); In re Hengehold,
440 F.2d 1395, 1404, 169 USPQ 473, 479 (CCPA 1971)
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