Appeal No. 2006-0680
Application No. 10/041,129
Rejections based on 35 U.S.C. § 103(a) must rest on a
factual basis. In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173,
177-78 (CCPA 1967). In making such a rejection, the examiner has
the initial duty of supplying the requisite factual basis and may
not, because of doubts that the invention is patentable, resort
to speculation, unfounded assumptions or hindsight reconstruction
to supply deficiencies in the factual basis. Id.
With regard to multilayer film 13, Bauer teaches that layer
18 comprises
at least one member selected from the group
consisting of polyolefin, polyamide,
polyester, and polyurethane; preferably, at
least one member selected from the group
consisting of polyolefin and polyamide; more
preferably, at least one member selected from
the group consisting of ethylene vinyl
acetate, ethylene α-olefin copolymer,
propylene α-olefin copolymer, ethylene
acrylate copolymer, polyethylene homopolymer,
and polypropylene homopolymer; still more
preferably, a blend of 80 weight percent
ethylene vinyl acetate copolymer (having 9
weight percent vinyl acetate) with 20 weight
percent linear low density polyethylene
[column 14, lines 26-37].
Thus, Bauer does disclose that layer 18, the so-called
“third” layer, can be made of polyester. Bauer does not teach or
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