Appeal 2006-2335
Application 09/851,460
553, 31 USPQ2d 1130, 1131-32 (Fed. Cir. 1994). Here we determine that
Farrell does not suggest that the thickness of any layer is unlikely to produce
the objective of Appellants’ invention, i.e., a thermoformed multilayer
barrier film. We determine that Farrell merely teaches that “the thickness of
each layer is not per se critical” but does not “teach away” from any
thickness ratio of multiple layers (Farrell 4:62-63). We further determine
that Farrell teaches that “[t]ypically” the thickness of the outer [filled] layer
is about 3 to about 7 mils while the thickness of the inner [unfilled] layer is
about 3 to about 7 mils (Farrell 4:63-66). However, contrary to Appellants’
argument, the disclosure and Examples of Farrell are not comparative with
the claimed thickness ratio since all of the disclosure and Examples found in
Farrell do not disclose or teach the thickness of a barrier layer, if present (see
Examples I and II in col. 5). Therefore, from the data given in Farrell, a
thickness ratio of filled layer to unfilled layers (the sealing layer and barrier
layer) cannot be determined.
Appellants argue that, as conceded by the Examiner, Miyazaki is
directed only to a two layer structure of an inner and outer layer, and
Miyazaki does not teach what the thickness ratio must be for a laminate of
three or more layers as here claimed (Br. 13). Appellants further argue that
even if Miyazaki teaches three-layer structures, this possible structure would
have no paper-like appearance since filled layer A would be sandwiched
between two unfilled layers B with a plastic appearance (Reply Br. 7).
Appellants’ arguments are not persuasive. As our reviewing court
has held:
Nor can patentability be found in the difference in carbon
monoxide ranges recited in the claims. The law is replete with cases
in which the difference between the claimed invention and the prior
5
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: November 3, 2007