Appeal No. 2006-0317
Application 10/192,106
Rather than reiterate the respective positions advanced by the examiner and appellants,
we refer to the answer and to the brief and reply brief for a complete exposition thereof.
Opinion
In order to review the examiner’s application of prior art to independent claims 1, 4 and
6, we first interpret these claims by giving the terms thereof the broadest reasonable
interpretation in their ordinary usage in context as they would be understood by one of ordinary
skill in the art in light of the written description in the specification unless another meaning is
intended by appellants as established in the written description of the specification, and without
reading into the claims any limitation or particular embodiment disclosed in the specification.
See, e.g., In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364, 70 USPQ2d 1827, 1830 (Fed.
Cir. 2004); In re Morris, 127 F.3d 1048, 1054-55, 44 USPQ2d 1023, 1027 (Fed. Cir. 1997); In re
Zletz, 893 F.2d 319, 321-22, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989).
The plain language of independent claim 1 specifies an oriented polymeric film structure
comprising at least a substrate having on a surface thereof a cavitated skin layer, wherein the
cavitated skin layer comprises at least any amount, however small, of any cold seal adhesive
coating on any part of the outer surface thereof, however small, and further comprises at least
any cavitating agent in an amount of from about 25 to about 60 weight percent of the total
weight of the cavitated skin layer. We determine from the preambular language that the
substrate and the cavitated skin layer can be any manner of polymer capable of orientation. The
meaning of the term “substrate” is not specified, and we determine that the same can be any
manner of polymeric layer or layers, and indeed, one of ordinary skill in this art would find this
term so used in the written description in appellants’ specification (e.g., page 4). The multiple
use of the open-ended terms “comprising” and “comprises” in transition and in the body of the
claim opens the polymeric film structure as well as the substrate and cavitated skin layer to
additional materials and layers, to the extent that the polymeric film structure can be oriented.
See generally, Exxon Chem. Pats., Inc. v. Lubrizol Corp., 64 F.3d 1553, 1555, 35 USPQ2d 1801,
1802 (Fed. Cir. 1995) (“The claimed composition is defined as comprising - meaning containing
at least - five specific ingredients.”); In re Baxter, 656 F.2d 679, 686-87, 210 USPQ 795, 802-03
(CCPA 1981) (“As long as one of the monomers in the reaction is propylene, any other monomer
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