Appeal 2006-2335
Application 09/851,460
art is some range or other variable within the claims. [Citations
omitted]. These cases have consistently held that in such a situation,
the applicant must show that the particular range is critical, generally
by showing that the claimed range achieves unexpected results
relative to the prior art range. [Citations omitted].4
On this record, we find that Farrell suggests various thicknesses for
the outer and inner layer of a multilayer barrier film laminate, while
Miyazaki also suggests various thickness ratios for the outer and inner layers
of multilayer film laminates (Miyazaki 7:33-38 and 8:5-19). Furthermore,
the thickness of the barrier layer would have been well within the ordinary
skill in this art, depending on the desired degree of oxygen impermeability
(e.g., see Bochow 1:55-57 and 2:58). From these findings, we conclude that
the determination of the thickness of each layer in the laminate of Farrell
would be prima facie obvious to one of ordinary skill in this art, absent any
showing of unexpected results. See In re Woodruff, supra.
Appellants argue that experimental evidence has been submitted
demonstrating “the properties and advantages” of the films according to the
invention (Br. 6-9). Appellants refer to data in the Specification 8-10, as
well as results submitted in the two Declarations under 37 C.F.R. § 1.132 by
Bernig (dated Jan. 7, 2002, and Mar. 10, 2003; Br. 6), with all data
summarized in the Table at Br. 8.
Accordingly, we must begin anew and reconsider all the evidence of
obviousness against the countervailing evidence of non-obviousness,
determining if the preponderance of evidence weighs for or against
4 In re Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936 (Fed. Cir.
1990).
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