Appeal No. 2006-0442 Page 7
Application No. 10/123,142
3. Obviousness based on Zerbe and Schmidt
The examiner rejected claims 11, 13, 15-21, 23, and 25-30 under 35 U.S.C. § 103
as obvious in view of Zerbe and Schmidt.3 Claim 11 is directed to a multi-layer film
having, among other things, a first layer that includes hydroxypropyl cellulose, a modified
starch, a surfactant, and a flavoring ingredient.
The examiner relied on Zerbe for its disclosure of a “film contain[ing] a water-
soluble cellulose derivative, hydroxypropyl cellulose (between 20-75%) in combination
with surfactants (0.1-5%), flavors and flavor enhancers.” Examiner’s Answer, page 12.
The examiner relied on Schmidt for its teaching of “an oral and dental hygiene multiple-
layered film comprising water-soluble or water-swellable film-forming agents, such as
starch[,] in combination with various surfactants and flavorants.” Id. The examiner
concluded that the cited references would have made the multi-layer film of claim 11
prima facie obvious.
Appellants argue that the rejection should be reversed because, among other
things, “neither patent discloses a modified starch.” Appeal Brief, page 9.
We agree with Appellants’ position. The examiner has pointed to no teaching in
either Zerbe or Schmidt that would have suggested the inclusion of a modified starch in a
multi-layer film. Therefore, the examiner has not adequately explained how the
references would have suggested a multilayer film comprising a modified starch. The
rejection of claims 11, 13, 15-21, 23, and 25-30 is reversed.
3 Schmidt, U.S. Patent 5,354,551, issued October 11, 1994.
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