Appeal No. 2006-1960
Application No. 10/380,877
We reverse both rejections on appeal essentially for the
reasons stated in the Brief, Reply Brief, and for those reasons set
forth below.
OPINION
The examiner finds that the packaging laminate disclosed by
Kato in Figure 2(D) shows elements corresponding to every element
as set forth in the claims (Answer, page 4, citing Table 1). With
regard to the claimed limitation that the lamination agent is a
polypropylene with a melting point above 130°C., the examiner finds
that Kato discloses an adhesive layer (40) that can be ADMER, a
commercial adhesive, which is the “same type of adhesive used by
applicants” (Answer, page 5).
Under section 102(b), anticipation requires that the prior art
reference disclose, either expressly or under the principles of
inherency, every limitation of the claim. See In re King, 801 F.2d
1324, 1326, 231 USPQ 136, 138 (Fed. Cir. 1986). The examiner fails
to point to any express disclosure of Kato regarding the claimed
limitation that the laminating agent is a polypropylene with a
melting point above 130°C. (see the Answer in its entirety).
Therefore we must presume that the examiner is relying on
inherency, i.e., the inherent properties of ADMER since the
examiner finds that both Kato and appellants use this commercial
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