Appeal No. 2006-0680
Application No. 10/041,129
suggest, however, that the polyester should have a melting point
of from about 130°C to about 260°C, or give any reasonable
indication that the particular type of polyester used would
significantly affect the desired attributes of the overall
multilayer film 13 and hence constitute an art-recognized result
effective variable. The examiner’s position to the contrary
finds no evidentiary basis in the fair teachings of Bauer or the
admitted prior art. Hence, even if the admitted prior art
practice of stack-sealing bags were used in conjunction with the
multilayer packaging film 13 disclosed by Bauer, the resulting
process still would lack response to at least one of the bag
limitations in claim 22.
Therefore, the admitted prior art and Bauer do not justify
the examiner’s conclusion that the differences between the
subject matter recited in claim 22 and the prior art are such
that the subject matter as a whole would have been obvious at the
time the invention was made to a person having ordinary skill in
the art. Accordingly, we shall not sustain the standing 35
U.S.C. §103(a) rejection of independent claim 22, and dependent
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