Appeal No. 2006-0317
Application 10/192,106
will of course depend on the particular facts; in general, a reference will teach away if it suggests
that the line of development flowing from the reference’s disclosure is unlikely to be productive
of the result sought by the applicant. [Citations omitted.]”); cf. In re Geisler, 116 F.3d 1465,
1470, 43 USPQ2d 1362, 1366 (Fed. Cir. 1997) (“The statement in Zehender that ‘[i]n general,
the thickness of the protective layer should not be less than about [100 Angstroms]’ falls far
short of the kind of teaching that would discourage one of ordinary skill in the art from
fabricating a protective layer of 100 Angstroms or less.”).
The issues of whether the combined teaching of Liu and Agent would have further
motivated one of ordinary skill in the art to include in the polymeric film structure of Liu first
and second tie layers and the indicia-receiving skin layer required by appealed claims 4 and 6 as
we have interpreted these claims above, are also raised on this record. We find that Liu would
have disclosed to one of ordinary a three layer polymeric film structure that can be used for
packaging food which thus differs from the claimed polymeric film structures in the absence of a
first tie layer, with respect to claim 4, and an additional, second tie layer and a skin layer that can
receive indicia, with respect to claim 6. We found above that Agent would have disclosed to this
person a polymeric film structure that can be used for packaging foods which can optionally
contain at least one tie layers between the core and skin layer(s), and the surface treatment of a
skin layer to receive ink and thus, be indicia-receptive.
Accordingly, we determine that, prima facie, one of ordinary skill in the art routinely
following the combined teachings of Liu and Agent would have additionally modified the
polymeric film structure of Liu by the positioning of at least one tie layer between the core and
the skin layers and by surface treating a skin layer to receive indicia, in the reasonable
expectation of obtaining a polymeric film structure having such layers in which at least one skin
layer containing a cavitating agent can be disrupted and torn and a skin layer can receive indicia,
the resulting oriented polymeric film structure being useful in the packaging of food, thus
arriving at the claimed polymeric films encompassed by appealed claims 1, 4 and 6 and claims
dependent thereon. See Keller, 642 F.2d at 425-26, 208 USPQ at 881-82; see also O’Farrell,
853 F.2d at 903-04, 7 USPQ2d at 1680-81.
1992); In re Preda, 401 F.2d 825, 826, 159 USPQ 342, 344 (CCPA 1968), presuming skill on
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